Volume 51 — Pennsylvania State Reports

Appear from the Court of Common Pleas of Dauphin county, in equity.

<p>Error to the Court of Common Pleas of Mrie county.</p> <p>This was an action of replevin, in which William J. Sharp was the plaintiff, and Jonathan E. Rowe the Defendant, and was for two billiard-tables and fixtures.</p> <p>Sharp, the plaintiff below, was a billiard-table manufacturer in the city of New York. On the 13th November 1863, one Charles A. Goff agreed to purchase from him two billiard-tables and fixtures, for $750, and then paid on account $200, of which this bill was given in evidence by the defendant:— . ■</p> <p>“ New York, Nov. 13th 1863.</p> <p>“Mr. Chas. A. Goff bought of Wm. J. Sharp, Billiard-Table Manufacturer, No. 148 Fulton street,</p> <p>“ 2 Rosewood Billiard-Tables, at $375, . . . $750</p> <p>“ By cash, . . . . 200</p> <p>$550</p> <p>The tables and fixtures were not then delivered to Goff, and on tbe 16th of the same month he and Sharp entered into the following agreement: —</p> <p>“ This indenture, made this sixteenth day of November, one thousand eight hundred and sixty-three, between William J. Sharp, of the city of New York, party of the first part, and Charles A. Goff, of Union Mills, State of Pennsylvania, the party of-the second part,</p> <p>“ Witnesseth, That the said party of the first part hath let, and by these presents doth let, unto the said Charles A. Goff, the party of the second part, Two Rosewood 'Slate Bed Billiard-Tables, with the usual fixtures, for the term of nine months from date, and for the sum of Five Hundred and Fifty Dollars ($550), to be paid in the following manner, namely: One hundred and fifty dollars on the sixteenth day of February 1864; two hundred and fifty dollars on the sixteenth day of May following, and one hundred and fifty dollars on the sixteenth day of August, 1864, mak ing in the aggregate five hundred and fifty dollars. . .</p> <p>“ And it is further agreed by and between the parties to these presents, that if default shall be made in the payment of the first or any of the above-named instalments or payments, then it shall be lawful for, and the said party of the first may re-enter into possession of said tables and property, take away, repossess, and enjoy the same as though these presents were not made.</p> <p>“ And the said party of the second part does -covenant and agree that the said tables shall be taken to his place of business, in Union Mills, Pennsylvania, and there held and kept, and’ not removed therefrom without the written consent of the party of the first part thereto first had and obtained; and at the expiration or sooner determining of the said term he will quit and surrender the said tables in as good condition as reasonable wear and use will permit.</p> <p>“ And the said party of the first part doth hereby covenant and agree that the said party of the second part, on paying the above specified instalments, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said tables for the said term.</p> <p>“ And the said party of the first part doth hereby covenant, promise, and agree to and with the said party of the second part, that if the said party of the second part shall well and truly keep the covenants herein made, and shall make no default in the paj1-ment of aforesaid instalments as the same shall become due and payable, and this lease shall not be determined by. mutual consent sooner or otherwise, that he, the said party of the first' part, will make, execute, and deliver to the said party of the second part a good and sufficient bill of sale for said tables, the consideration whereof shall bo the amount of the above-named payments received for the said term, making in all the sum of five hundred and fifty dollars.</p> <p>“ And the said party of the second part does hereby covenant and agree to keep the said tables insured against loss or damage by fire, during the continuance of this lease, in the sum of at least five hundred dollars, in a good gnd incorporated company, approved of by the said party of the first part, and assign the policy or certificate thereof to the said party of the first part, and in default thereof the said party of the first part may effect such insurance, and the premium so paid for effecting the same shall be a lien on the said tables, added to the above-named amount, and be collected as the same.”</p> <p>Upon the execution of this agreement, the tables, &c., were delivered to Goff, who took them to his place of business, as stipulated.</p> <p>Whilst the tables were in Goff’s possession he was arrested, and Rowe, February 12th 1863, entered into recognisance for his appearance at court. As indemnity to Rowe, Goff delivered the tables to him at the time.</p> <p>There was evidence that whilst Rowe was removing the tables he was informed of the manner in which Goff held them.</p> <p>On the 7th March Sharp issued a replevin against Rowe for the tables; next day Goff executed a bill of sale of them and some.other articles to Rowe and one Fero, who was a creditor of Goff’s, for the nominal price of $543, the consideration being Rowe’s security and the debt to Fero, the amount of which did not appear.</p> <p>The defendant claimed the property, and gave a claim property bond.</p> <p>On the trial, the defendant submitted to the court the following points</p> <p>1. That the contract between plaintiff and O. A. Goff, offered in evidence, is a contract of sale of the tables in controversy by plaintiff to Goff — vesting the property in him, which he had a right to transfer, by sale or otherwise.</p> <p>2. That if the jury find that the defendant held the tables as security for becoming bail for the appearance of Goff in the Court of Quarter Sessions of this county, and that he was liable to be damnified on account of being such bail, he has such a special property in. such tables as will prevent a recovery by plaintiff in this case. •</p> <p>The court (Derrickson, A. J.), charged the jury that, “from an unsigned bill of purchase it would seem as if Goff had bought the billiard-tables in question of Sharp on 13th November 1863 for $750, on which there is a credit marked of .$200, but on the 16th following a written contract was executed by them, by which Sharp leased the tables to Goff for nine months at a rent of $550” (stating the terms in detail). “ If the terms of the lease should be complied with, Sharp was to make out a bill of sale of the tables to Goff. They were taken by Goff to his house, but he made no payment as contemplated by the lease, and getting into "some criminal difficulty, he pledged the tables to Rowe to indemnify him as bail for his appearance at court. Goff sold the articles, one-half to.Rowe and-the other half to Fero, a creditor of his, both of them having a knowledge of the lease of the property to Goff, and they were taken from Goff’s to • some other place, probably the defendant’s. If the facts were as thus stated, we should have to refuse an affirmative answer to the defendant’s two propositions. The mere liability of Rowe as bail, and especially if not injured thereby, would not entitle him to hold the property from Sharp, if the terms of the lease had been violated by Goff, nor would his and Fero’s subsequent purchase, with this knowledge of the manner in which the other held it, give them any additional or greater right to hold it from the lessee. * * * If the evidence is credited by the jury, the plaintiff is entitled to recover back his property.”</p> <p>The defendant excepted to the charge of the court, and the jury having found for the plaintiff $561.46, the defendant brought the case into this court, and assigned the following errors:—</p> <p>1. The court erred in saying to the jury, “ Goff sold the articles, one-half to Rowe and the other half to Fero, a creditor of his, for $550, loth of them having a knowledge of the lease of the property to Groff.”</p> <p>2. The court erred in not answering defendant’s first point in the affirmative.</p> <p>3. The court erred in answering defendant’s second point in the negative.</p> <p>3. The court erred in saying to the jury, “ the mere liability of Rowe as bail, and especially if not injured thereby, would not entitle him to hold the' property from Sharp if the terms of the lease had been violated by Goff.”</p> <p>5. The court erred in charging the jury as follows: “Nor would his” (Rowe’s) “ and Fero’s subsequent purchase with this knowledge of the manner the other held it, give them any additional or greater right to hold.it from the lessee.”</p>

<p>1. The notice which the county treasurer is required to give to the owner of seated lands sold for taxes under the Act of April 29tb 1844, should be precise and full; unofficial and unauthorized notice is no notice.</p> <p>v2. Although written notice may not be essential, the evidence of its service should be preserved in the archives of the treasurer’s office, as a muniment of title.</p> <p>3. Therefore, where the witnesses differed as to the fact of notice, and the treasurer could not fix the time within less than three months: Held, the proof was insufficient to go to the jury.</p> <p>4. The discovery by the owner, in the treasurer’s office, of the sale of his land for taxes, is not the formal official notice required by law.</p> <p>5. The payment of taxes, interest, and costs by the owner within a year from notice of the sale in order to redeem seated lands sold for taxes under the Act of 1844, should be made to the county treasurer; but a tender to the purchaser in due time would be a good redemption.</p>

<p>Error, to the Court of Common Pleas of Erie county.</p> <p>In the court below this was an action of covenant, William Kelley, for the use of John Marvin and Jehiel Towner, doing business as Marvin & Co., against Wilson King, John S. Brown, Irvin Camp, and others, doing business as King, Brown & Co.</p> <p>King, Brown & Co. were contractors for the construction of sixty miles of the Sunbury and Erie Railroad. They sub-let five miles to William Kelley, who, without doing any work, sub-let it to Marvin & Co., Kelley to receive 10 per cent, of the contract price. The railroad company recognised only King, Brown & Co., to whom all estimates passed to the sub-contractors ; Marvin & Co. drew their estimates directly from King, Brown & Co., the assignment from Kelley having been approved by them: thus King, Brown & Co. became debtors to Marvin & Co. for their estimates. A final estimate of all, except extra allowance, was made in November 1859. By a settlement, February 4th 1862, it was ascertained that there was due to Marvin & Co., November 1st 1859, in cash and bonds reduced to cash, $5720.17. There was evidence that the defendants received interest from the railroad company on the indebtedness to them.</p> <p>After November 1st 1859, and prior to March 19th 1860, King, Brown & Co. procured a re-estimate of work on their entire contract, of which the share on Marvin & Co.’s contract was finally adjusted at $7570.96; this, being reduced to cash, and deducting Kelley’s 10 per cent., left the balance due Marvin k Co. $5178.45, in addition to the amount due November 1st 1859.</p> <p>March 19th 1860, Marvin & Co. made the following order:</p> <p>“ Messrs. King, Brown & Co.:</p> <p>“ Please pay Irvin Camp and Wilson King the amount which may be awarded us on claims growing out of contract between King, Brown k Co. and William Kelley, subsequently assigned to John Marvin k Co. the acceptance of this order to be in full of all our claims on King, Brown & Co., under said contract — ■ except what may be now due us on estimates up to January 1860, said contract being for sections Nos. 23, 24, 25, and 26 of the Western Division of the Sunbury & Erie Railroad.</p> <p>“Marvin k Co.</p> <p>“ Waterford, March 19th 1860.”</p> <p>Across the face of said order is the acceptance of it in the words following:</p> <p>“ Accepted. To be paid when the S. & E. RR. Co. pays King, Brown & Co. the amount due on final estimate.</p> <p>“ J. W. Ryan, Treasurer.</p> <p>“ August 20th 1860.”</p> <p>Marvin k Co., alleging that this order had been fraudulently procured, on October 18th 1860, notified King, Brown & Co. not to pay it.</p> <p>In March of the same year Marvin had given King, Brown & Co. notice not to pay any moneys due Marvin & Co. to his partner Towner, and Towner gave a similar notice not to pay them to Marvin. July 30th 1861, a creditor of Marvin & Co. attached their funds in the hands of King, Brown & Co. for a debt of $667.15, and March 10th 1862, another creditor laid a similar attachment for a debt of $1572.31. King, Brown & Co. did not pay King & Camp on Marvin & Co.’s order, but deposited stocks and bonds with the firm of Vincent, Bayley & Co. to pay the amount due Marvin & Co. upon the termination of the litigation. This suit was brought December 12th 1860, and June 19th 1862 the defendants paid into court $5600, the amount admitted by them to be due Marvin & Co., besides the sum embraced in the order of March 19th 1860.</p> <p>On the trial the defendants submitted, amongst others, the following points:—</p> <p>1. That the plaintiffs are not entitled to recover interest on the sum of $5600.17 found due them on settlement on the 1st day of November 1859 from the 10th day of March 1860 until June 19th 1862, as defendants were notified by John Marvin not to pay the money to his partner, Towner, and Towner’s notice not to pay Marvin.</p> <p>2. If the jury believe from the evidence there was a controversy existing between Mr. Marvin and Mr. Towner, his partner, as to the ownership of the said sum of money found due Marvin & Co. from defendants, and said partners each notified defendants not to pay said money to the other, defendants are not liable for interest while Marvin and his partner were litigating their respective claims to said money.</p> <p>5. The paper given in evidence by defendant, bearing date March 19th 1860, is in its legal effect an assignment or transfer to Irvin Camp and Wilson King by Marvin & Co., of all the right and interest of said Marvin & Co. in and to all the estimate to them, in the final estimate to King, Brown & Co., made March 6th 1860, upon the acceptance by King, Brown & Co., of said order or assignment, and the said Marvin & Co. having so parted with their interest in said estimate before the commencement of this suit, they are not entitled to recover any part of the estimate to King, Brown & Co. after the 1st of January 1860.</p> <p>6. The order of Marvin.'& Co. on King, Brown & Co., and by them accepted, in favour of Irvin Camp and Wilson King, bearing date March 19th 1860, is a bar to the plaintiffs’ recovery for any claim they may have had on King, Brown & Co., arising’ out of the contract for building secs. 23, 24, 25, and 26 of the western division of the Sunbury and Erie Railroad, except what .was due Marvin & Co. on estimates up to January 1860.</p> <p>7. If the plaintiffs are entitled to recover in this case they are not entitled to recover interest on the amount due them out of the estimate of March 6th 1860, the same money being claimed by King & Camp, by virtue of said order or assignment of said Marvin & Co., and the right of Marvin & Co. to it being disputed by them.</p> <p>The court (Johnson, P. J.) answered all these points in the negative, and the answers are here assigned for error.</p>

This case came before the court below, on the following case stated: — • By an Act of Assembly, entitled “ An act to incorporate the Pittsburgh Birmingham Passenger Railroad Company, approved 18th April 1859, said company is authorized to construct a railway, inter alia, along Carson street, in the borough of Birmingham.” The 8th section of said act provides: “ That the said railway company shall not be permitted to use and occupy any of the streets of the said city of…

In the court below this was an action on the case brought by McCaughey, the defendant in error, against Hall, the plaintiff in error, for nuisance in obstructing a private alley.

In the court below this was a certiorari to a justice of the peace to remove certain proceedings against the plaintiffs in error, who were the defendants below. « Ey an Act of Assembly of March 26th 1846, it is enacted that if any person shall feel aggrieved by a road laid out or altered by the commissioners, he may complain to a justice of the peace, and if the justice shall think there is good cause of complaint, he shall summon the commissioners to appear before him in…

<p>1. A father, owner of an entire tract of unimproved land, said to his son, who had been working with him and was about 'leaving him, that he would give him (the son) one-half of it, without designating which, if ho would stay with him a year; the promise, in about the same terms, was afterwards repeated, designating the north half. Although the son assented and remained with his father, and some marks were made to indicate the line, and some improvements were made, it was held that the contract, if made, was executory merely and not an immediate transfer of ownership.</p> <p>2. jHeld, that there was no evidence to a jury sufficient to find a parol contract of a sale executed.</p> <p>3. The father afterwards conveyed the land to the son by deed; but before the conveyance, a judgment was entered against the father, under which the whole tract was sold. Held, that the contract was not executed until the delivery of the deed, and the possession and other acts of ownership of the son after that time are to be accounted for by the deed and cannot be called in aid of the parol contract, and the entire tract passed by the sheriff's sale.</p> <p>4. When a vendee under an alleged parol contract has been in possession for a long time, he is not to be held to proof so rigid as under a recent sale.</p> <p>5. Lapse of time will supply the want of distinctness and directness of proof, and will corroborate defective evidence of the existence of the contract, but will not create such evidence. But when the alleged vendee has been a long time out of possession, the presumptions are the other way.</p>

<p>1. Heirs stand in no relation of confidence to the bidder at an Orphans’ Court sale of their ancestor’s land after proceedings in partition, and the highest bidder at such sale has no right which debars the heirs from trying to have his bid rejected and a resale ordered.</p> <p>2. Until the sale is confirmed, the heirs may seek for purchasers who will give more, and may ask the court to open the biddings and offer the property to auction again, and the court, at their discretion, may order a resale.</p> <p>3. Where, therefore, after the land was- struck off to the highest bidder and the administrator made return of that fact and also of other facts for believing that a higher price could be obtained, and asked the court to set aside the sale and order another sale, the court had a right to make such orders.</p> <p>4. The administrator or heirs may lawfully make an arrangement with their counsel or a stranger before the return, to have the sale set aside, he agreeing to give more at another sale.</p> <p>5. The highest bidder cannot complain that he received no notice of the application to set aside the first sale, if he attend and bid at the second sale; ■ whether he is entitled to such notice under any circumstances, or whether he has a right to appeal from a decree setting aside a sale, not decided.</p>

<p>Error, to the Court of Common Pleas of Allegheny county.</p> <p>This was a scire facias on a mortgage by Lydia B. McKinney, surviving Alexander McKinney, deceased, for use of herself and Mary Oliver, against James Hamilton and Sarah his wife.</p> <p>Verdict for plaintiff, $119.50, and writ of error by plaintiff.</p> <p>Lydia McKinney, the plaintiff, was the daughter of Joseph Oliver, deceased, and Mary Oliver. A lot of land in Pittsburgh, late the estate of her father, was decreed to her under proceedings in partition, subject to her mother’s dower, being the interest of $500 annually. Lydia sold this lot to Sarah Hamilton for $1400, of which $900 was paid in hand and a bond and mortgage given by the purchasers for $500, payable, with interest, April 1st 1859, to Alexander McKinney and Lydia McKinney. This is the mortgage on -which this suit is brought.</p> <p>Mrs. Oliver, the widow, at the time of her conveyance released her dower in the lot, and the interest of the $500 secured by the bond and mortgage was at the same time assigned to her to secure her dower. The assignment was duly recorded and the interest paid regularly to the widow till April 1st 1856. Alexander McKinney, the husband, entered satisfaction on the mortgage March 24th 1864.</p> <p>There was no proof of actual payment to the husband.</p> <p>The question in the court below was, whether the plaintiff was entitled to recover $792.50, the whole amount of principal and interest, or only $119.50, the amount of interest due to the widow. The jury gave a verdict for $762.50, subject to the question of law reserved by the court.</p> <p>After stating the facts, the court (Stowe, A. J.) delivered the following opinion:—</p> <p>“I am of opinion that an actual payment of the mortgage to him (A. McKinney), by the mortgagors, would satisfy the mortgage, precisely as in other cases of payment to one of two or more joint obligees or mortgagees. This appears to have also been the view taken by C. J. Lowrie, in the case of Trimble v. Beis, where he says, ‘ The mortgage could not be released by the husband, without a consideration that would legally amount to payment.’</p> <p>“ Assuming this to be so, then was there sufficient evidence of actual satisfaction or payment of this mortgage to McKinney ? All we have is the entry of satisfaction on the record. Is this enough ? I can find no case, and can see no reason why the rule of evidence should be different in this case from ordinary cases. I take it, the evidence shows sufficiently that the defendants paid the money coming to McKinney and wife, under the mortgage to him, at least to make out a primé facie case; and, if so, the plaintiff has failed to show a right to recover the principal sum, viz., $500, secured by the mortgage.</p> <p>“ All she is entitled to recover in this suit is the amount of interest accruing from April 1st 1856 to 24th March 1860, viz., $119.50.”</p> <p>The plaintiff removed the case into this court, and here assigned the following errors :—</p> <p>The court erred, 1. In deciding that the satisfaction of the mortgage, by McKinney, on the 24th day March 1860, was a good and valid satisfaction.</p> <p>'2. In deciding that McKinney had the same right to satisfy the mortgage that any other mortgagee would have, and that McKinney could satisfy this mortgage “precisely as in other cases of payment to one of two or more joint obligees or mortgagees.”</p> <p>3. In not entering judgment for the full amount ($762.50) of the verdict rendered by the jury.</p> <p>4. In totally ignoring the fact that the real estate sold was the separate property of the wife, and that the mortgage was her separate property.</p> <p>5. In disregarding the fact that the interest of the mortgage was assigned and made payable to Mrs. Oliver during her natural life.</p> <p>6. The judgment on the mortgage, entered by the court, is a final one, and no suit can be brought hereafter for the recovery of the future interest which may accrue.</p>

<p>Error to the Court of Common Pleas of Allegheny county.</p> <p>The claim of Duncan & Williams, the plaintiffs below, and defendants in error, was for $3862.50, with interest on $1781.25, part of that sum, from February 14th 1865, and on $2081.25, the remainder, from March 7th 1865. The indebtedness arose, as the plaintiffs alleged in their affidavit, as follows: — On February 14th 1865, they bought of Haldeman, defendant below, three hundred barrels of oil for $3862.50, to be delivered “ at Oil City, ready for shipment on first water,” * * “ or rise in Allegheny river and its tributaries.”</p> <p>Plaintiffs then paid $1781.25 on the contract, and on March 7th paid the balance, $2081.25. The plaintiffs alleged that the first water occurred March 6th, that they demanded the delivery of the oil on or about March 21st, and that the defendant refused to deliver it.</p> <p>In his affidavit of defence, the defendant stated that when the last payment was made, he took one of the plaintiffs from his office, at Oil City to the yard and landing on the bank of Allegheny river, pointed to him a large lot of oil ready for shipment, and requested him to select the three hundred barrels bought by him; that the plaintiff proceeded to test the oil in different barrels, with a view, as defendant believed, of selecting the three hundred barrels, and after being engaged some time in “ testing said oil, expressed himself satisfied, and went away without separating or removing said three hundred barrels from the larger bulk of oil lying there ready for shipmentthat the plaintiffs neglected and refused to remove said oil from the premises of the defendant until 17th March, when an extraordinary flood in the Allegheny river overflowed defendant’s yard and landing, and washed away said oil, and it was lost. The defendant claimed that there was a good delivery of the oil; and stated that the river continued in good navigable order until the flood, and the oil might have been removed by the plaintiffs to a place of safety.</p> <p>The court rendered judgment for plaintiffs for $3900.21, for want of a sufficient affidavit of defence.</p> <p>The defendant removed the case into this court, and assigned for error that “ the court erred in entering judgment against the defendant.”</p>

<p>Error to the Court of Common Pleas of Allegheny county.</p> <p>Russell, plaintiff below and defendant in error, was a collector of taxes in Pittsburgh, for the years 1855,1856,1857, and 1858. In 1864 he sued Wickersham, the defendant below and plaintiff in error, for a balance of taxes due by him for those years.</p> <p>Russell, in his affidavit of claim, filed under a rule of court, set out specifically the whole amount of taxes assessed against Wickersham for the above years and admitted the payment of $441.81, which wholly discharged the taxes of 1855, leaving unpaid on the taxes of 1856 $298.12 .and the whole of the taxes of 1857 and 1858. He claimed, therefore, $298.12, with interest from July 1st 1858 ; $9.92, the taxes for 1857, with interest from July 1st 1859; and $8.52 taxes for 1858, with interest from July 1st 1860. He also stated that he had never been exonerated from the payment of these taxes, but as collector had become liable to pay them and had paid them.</p> <p>In his affidavit of defence the defendant set up the Statute of Limitations, as a bar to all except the taxes of 1857 and 1858 and tendered judgment for their amount with interest as claimed. He also stated that he “ believes” that the plaintiff did not pay the taxes as he alleged, “ but that defendant himself paid a part at least of said taxes, but has mislaid or lost his receipt therefor.”</p> <p>The warrant for the collection of the taxes of 1856 issued ■ November 15th 1856: this suit was commenced October 1st 1864.</p> <p>On the trial the plaintiff offered in evidence his affidavit of claim, which was objected to, but admitted, and a bill of exceptions sealed.</p> <p>The rule of court referred to is as follows:—</p> <p>“ If the plaintiff shall file, with his prcecipe, a specification of the items of his claim, and statement of facts necessary to support it, verified by affidavit, such items of claim and material averments of fact as are not directly traversed or denied by the affidavit of defence, shall be taken as admitted.”</p> <p>Plaintiff’s attorney asked the court to instruct the jury that the Statute of Limitations did not begin to run till the expiration of two years from the date of warrant to plaintiff, the collector,, to wit: November 15th 1856.</p> <p>Defendant’s attorney asked the court to instruct the jury that all the items of the plaintiff’s claim, except the amount admitted in defendant’s affidavit, are cut out by the Statute of Limitations and plaintiff cannot recover for any item dated beyond six years before bringing suit, to wit: item $298.12, with interest from July 1st 1858.</p> <p>The court (Stowe, A. J.) charged as follows:—</p> <p>“ The Statute of Limitations does not begin to run till the expiration of two years of the date of the warrant to collect taxes, as the collector has no right to sue till that time ; and he has in this, as in ordinary actions, six years in which to enforce his claim by action, from the time the right to sue accrues.”</p> <p>The defendant excepted to the charge of the court, and in this court assigned for error:—</p> <p>1. The admission in evidence of the plaintiff’s claim.</p> <p>2. The “ negativing defendant’s point and affirming plaintiff’s point.”</p>

<p>1. A company having bought in shares of its own capital stock, afterwards divided them among the then stockholders pro rata; a stockholder who had, between the time of the purchase and the time of the distribution, assigned a part of his stock, sued the company for a pro rata of the shares on the basis of the number held by him at the time of the purchase. Held, that his action is an affirmance of the purchase, and he cannot allege that the company's funds were misapplied: as to him, the distribution was an equitable one.</p> <p>2. Although the employment of corporate funds', to speculate in the stock Of the company to which the funds belong, is not a practice to be encouraged, the plaintiff was not in a position to censure the practice. As to him the purchase was valid and fair.</p>

<p>Error to the Court of Common Pleas of Allegheny county.</p> <p>In the court below, this was a scire facias on a mortgage, in which Thomas D. Loomis for use of Fannie D. Gordon, was plaintiff, and William Robinson, Jr., defendant.</p> <p>The mortgage was. to Loomis, and dated October 1st 1860, to secure $21,000 in instalments,- half-yearly in unequal sums, “ without interest, to be reckoned on said sums till after they shall become due.”</p> <p>The mortgage contains the following clause, viz., “ Provided, further, in case of default in the payment.of any instalment or instalments 'aforesaid at any time falling due, for the space of thirty days thereafter, or any part thereof, that thereupon it shall be lawful for Thomas D. Loomis, his executors, administrators and assigns, to sue out forthwith a writ of scire facias and proceed at once thereon for the whole amount at such time remaining unpaid, with five per centum attorney collection fees, according to law, without any further stay, any law or usage to the contrary notwithstanding.”</p> <p>All the instalments falling due prior to October 30th 1863, were paid at maturity.</p> <p>On the 1st day of December 1863, the scire facias in this case issued under the clause of the mortgage recited above. The defendant filed an affidavit of defence, alleging only usury and tender of the amount actually due on the defaulted instalment.</p> <p>Upon the trial, the plaintiff claimed and ivas allowed to recover the sum of $18,566.58, being the aggregate amount remaining unpaid on the mortgage, with interest on the instalments due up to time of trial, and 5 per cent attorney’s commission.</p> <p>There was no evidence of what were the actual legal expenses of the plaintiff in this suit.</p> <p>The defendant prayed the court to instruct the jury—</p> <p>“ That the utmost now recoverable upon the present scire facias is the instalment which fell due October 30th 1863, viz., $5750, with interest and attorney’s commissions thereon.</p> <p>“ That if all the instalments were now recoverable, there must be a rebatement of interest upon the instalment payable October 30th 1865.</p> <p>“ That the clause touching attorney’s commissions of 5 per centum is to cover actual legal expenses of the plaintiff, and the same is in the nature of a penalty, and under the evidence the plaintiff is not entitled to recover said 5 per centum.”</p> <p>But the court (Mellon, A. J.) refused so to charge.</p> <p>Under the instructions of the court, the jury found for the plaintiff the whole amount claimed, to wit, $18,566.58. .</p> <p>The defendant excepted to the charge, and having removed the case to the Supreme Court, assigned for error the answers of the court to foregoing points, and also that the court erred in entering a general and absolute judgment on the verdict, and in not restricting execution to the instalments which, by the terms of the mortgage, were past due, with interest.</p>

<p>ErrorPo the Court of Common Pleas of Armstrong county.</p> <p>This was an action of assumpsit brought against Peter Evans, by his guardian, Charity Evans, to recover the price of a pair of oxen, the price agreed upon being $60. John Evans, the father of defendant, died in Armstrong county some time prior to September 1840, leaving his widow, Charity Evans, and his son Peter and some younger children, surviving him.</p> <p>At September sessions, 1840, Charity Evans was appointed the guardian of Peter Evans. The- estate left by John Evans consisted, almost exclusively, of the farm upon which he died. The widow undertook to continue the farming business, and thus keep the family together, and their support was wholly derived from that source. Peter Evans, being the only .child old enough for the purpose, was employed by the widow and guardian as the business-man and farmer, and continued in that position until the trial of this suit, purchasing, with his guardian’s consent, all the stock, farming implements, &c., and selling and disposing of the crops and products of the farm.</p> <p>On the 12th day of March 1858, Peter Evans purchased of Lewis Mohney, the plaintiff, two young cattle, partly broken to the yoke, for the purpose of being used upon the farm for his own benefit and that of the family generally. Mr. Mohney drove the cattle to the house, and delivered them to Peter Evans, and his mother and guardian, Charity Evans. The guardian took charge of them, and directed where they should be put, making no objection, but receiving them with full knowledge of her ward’s pur-" chase. The cattle were used upon the place for some time, and then traded -for a horse, which continued to do the work of the farm. No objection was ever made to the transaction until Mr. Mohney called for his money, upwards of a year after the purchase, when the guardian and ward both refused to pay the money or restore the property.</p> <p>The narr. filed contained the common counts, with a special count upon the contract. The note of the ward was not declared upon, but merely used as evidence.</p> <p>The defendant by his guardian pleaded infancy.</p> <p>The plaintiff submitted the following points : —</p> <p>1. That if the jury believe that Charity Evans, as guardian of Peter Evans, employed him in the art and occupation of a farmer, and maintained him from the proceeds of his labour upon such farm, and that with her knowledge and consent he bought the bulls for working use on the farm, the contract is binding, and the verdict should be for the plaintiff.</p> <p>2. If Charity Evans, as guardian, received the bulls on the farm, and allowed them to be traded for a work-horse for said farm, without objection or notice to plaintiff, the contract is binding, and plaintiff can recover.</p> <p>8. If the jury believe that Peter Evans purchased the bulls for use on the farm, and his guardian consented to or ratified the purchase, by receiving into her actual possession the property, knowing it to he unpaid for, and gave no notice to plaintiff when he delivered them, the contract is binding.</p> <p>4. The question of whether the bulls were necessary is for the jury, and to be ascertained from the situation and circumstances of the minor, and his employment in business, and if these hulls were purchased with the knowledge and consent of the guardian for working on the farm, but traded for a horse which was actually engaged on said farm, it would be the same as if .the bulls had been worked thereon instead of the horse.</p> <p>The court ans,wered all these points in the negative, adding, in answer to the 4th, “ so far as it is efficacious to charge Peter Evans.”</p> <p>The court (Buffington, P. J.), after stating the leading facts, charged as follows:—</p> <p>“ A minor is not to be held responsible upon any contract he may make, except for necessaries, as boarding, clothing, medical attendance, schooling, &c., of a character and quality suitable to his age and condition in life. The policy of the law, for wise purposes, has so determined, in order that youth may he protected from the consequences of their own inexperience and folly. This case perhaps, if the jury believe the weight of evidence, is a fitting example, as this hoy purchased a pair of bulls, not needed on the •farm, and at an exorbitant price. .</p> <p>“ However hard it may he that the plaintiff should lose the value of his property, still he dealt with the defendant at his peril. And although there is no evidence of fraud or unfairness in the plaintiff, still courts and juries cannot enforce contracts declared by the law to he inoperative and inefficacious. If the jury therefore believe that he was not of age at the time of this contract, and that the bulls were not needful to him under the circumstances, we are of the opinion that the contract was not, and is not now, binding on him.”</p> <p>The jury found for the defendant, and the plaintiff having excepted to the opinion of the court, removed the case to this court, and here assigned errors as follows:—</p> <p>1. The court erred in deciding, as matter of law, in answer to plaintiff’s 4th point, that the cattle were not necessary for the defendant, and in charging the jury as follows: — “This ease perhaps, if the jury believe the weight of evidence, is a fitting example, as this boy purchased a pair of bulls, not needed on the farm, and at an exorbitant price.”</p> <p>2. The court erred in their answers to the plaintiff’s 1st, 2d, . 3d, and 4th points.</p>

<p>1. On appeal from the judgment of a justice, a recognisance in these words, “Adam Beamer goes security in the sum of fifty dollars for the prosecution of this suit to effect,” held to be sufficient.</p> <p>2. A recognisance before a justice, although informal, is sufficient, if it undertakes that the appellant shall prosecute his appeal with such effect as that no costs shall be recoverable by the appellee.</p> <p>3. Entries upon justices’ dockets are to be construed liberally, especially in favour of those seeking a trial by jury.</p> <p>4. The right of appeal is a statutory right, given in furtherance of rights guarantied by the Constitution; it is favored, and not allowed to be encumbered by adherence to forms.</p>

This was an appeal from an award of viewers, assessing damages for making a railroad through the property of the plaintiff, upon which an issue was directed and tried in the Court of Common Pleas. The defendants ran their road close by the plaintiff’s distillery; the width of ground measured off by the defendants included the plaintiff’s spring and spring-house.

<p>1. The fraudulent concealment of other property, liable to execution, for the purpose of hindering and delaying the creditor by preventing a sale of the property levied on, is a bar to the defendant's right, under the exemption law, to retain the property seized.</p> <p>2. Fraud is no bar if it is independent of the transaction in which the levy was made; but when it exists in the very transaction, it is a positive bar, and is not to be used merely in mitigation of damages.</p> <p>3. The sheriff may, at his own risk, resist a claim of the debtor, if he has reason to believe he is not entitled to the exemption.</p>

A large number of persons petitioned the Court of Quarter Sessions, setting out that they laboured under “ inconvenience for want of a road or highway to lead from the turnpike * * * to Sandy Lick Creek,” and praying for the appointment of viewers to view and lay out such road. The court accordingly appointed viewers for that purpose.

<p>Error to the Court of Common Pleas of Jefferson county.</p> <p>This was an action on the case brought by Andrew S. Rhines, the plaintiff in error, against Iienry Raught. During the pend-ency of the suit, Raught died, and A. M. Clark and Rosanna Raught, his executors — the defendants in error — were substituted. Raught, some time before 1857, had erected and maintained a dam across the Clarion river, which is a highway. In that year Rhine$ was running a raft of lumber clown the river, which stuck fast on this dam, and in consequence, was delayed, put to expense, and lost much of his timber.</p> <p>By an Act of Assembly (March 27th 1852, § 7, P. L. 188), it is provided, “ that whenever it shall be alleged that any dam on said river (Clarion) is not erected according to law, and damages have been sustained in consequence,” the person aggrieved may notify the owner, &c., of such premises that he will proceed to ascertain the damages : and the person injured shall choose one person, the owner of dam, &c., another, and if the parties cannot agree, the two referees shall select the third ; and the three shall make an award of the damages and file it in the prothonotary’s office, and it “ shall have the full effect and force of a judgment * * and have priority of' lien on such premises over any other judgments obtained after the passage of this act,” &c.</p> <p>The only question ruled in the court below was the effect of this act as to the plaintiff’s remedy.</p> <p>Campbell, P. J., charged the jury as follows :—</p> <p>“ The plaintiff brings this suit to recover damages sustained by reason of the defendant’s testator having erected a dam across the Clarion river, and the material question of law raised in the case is, can he recover, in the face of the Act of Assembly of March 27th 1852 (Pamphlet Laws of 1852, pages 183 and 184). As we understand the provisions of that act, it takes away the right of trial by jury, and substitutes a tribunal therein created, ‘ whenever it shall be alleged that any .dam on said river is not erected according to the requirements of law, and that damages have been sustained in consequence thereof.’ It is hardly necessary to refer to the rule that when a statutory remedy is provided, it must be pursued exclusively. We cannot doubt, therefore, that whatever damages have been sustained by the erection of this dam, must be assessed in the manner pointed out in the act, and that the plaintiff cannot recover in this suit.”</p> <p>To this charge the plaintiff excepted, and having removed the case to this court, here assigned for error that</p> <p>The court erred in instructing the jury that “ whatever damages have been sustained by the erection of this dam, must be. assessed in the manner pointed out in the act, and that the plaintiff cannot recover in this suit.”</p>

<p>1. Fleming being the owner of the equitable title of a tract of land, the legal title being in Bredin & Campbell, sold it to Brewer and. others, and authorized Bredin .& Campbell to make a deed to his vendees on payment of the balance of the purchase-money due them, at a time fixed. By a writing of same date, Fleming acknowledged the receipt'of $2500 on account of the purchase-money due him, and agreed that his vendees might have sixty days to give up the contract, and Fleming, in such case, four months to pay back the money paid him, with interest. The vende’es bought the legal title, afterwards gave notice to Fleming that they would not take the land, and Fleming tendered the money, with interest, both within the period stipulated. Held, that the purchase from Fleming was at an end, and that his vendees were in the place of Bredin & Campbell as the owners of the legal title.</p> <p>2. The legal title thus owned by Brewer & Co. gave them no right to the possession of the land; that remained in Fleming, who alone had a right to cut timber on it.</p> <p>3. After the purchase from Bredin & Campbell, and notice to Fleming and tender by him, Brewer & Co. cut a large quantity of timber on the land. Held, that they were trespassers, and that the timber might be recovered by Fleming in replevin.</p> <p>4. A mere temporary occupancy, for the purpose of taking off timber, by one having no right of possession, is not such an actual possession as defeats the constructive possession which the law casts upon the owner ; and as soon as the timber is severed his right of property vests in it, and replevin or trover lies for its recovery.</p> <p>5. Fleming, within the period fixed for the agreement, offered to one of the vendees a sum of money, which he said was the amount paid him with interest; the vendee refused to take it or count it, but did not dispute the amount. Held, that this was a sufficient tender.</p> <p>6. Fleming’s vendees, at the time, of their purchase of the legal title, paid or secured to the owners of that title the balance of the purchase-money due them. Held, that Fleming was not bound to tender the amount of the purchase-money thus paid or secured, or to procure a release from Bredin & Campbell, before being remitted to his original equitable title.</p>

<p>Error to Common Pleas of Forest county.</p> <p>Mellon, to the use of Duff, having recovered a judgment in Clarion county against Guthrie and McFadden’s executors in Clarion county, transferred it to Jefferson county, and, — after the erection of Forest county out of a part of Jefferson county, — entered in Forest county a transcript from Jefferson, and proceeded upon it, in Forest county, by sci. fa., obtaining a judgment by default, under which the land of the defendants in Forest county was sold by the sheriff.</p> <p>The defendants entered a rule to show cause why the judgment by default, and the original judgment in Forest county, on which it was founded, should not be stricken off, as being a¡n exemplification of an exemplification.</p> <p>The rule was made absolute by the court below, which was the error assigned.</p>

<p>Error to tbe Common Pleas of JSrie county..</p> <p>• Ejectment by John W. Scott, against Almon Perry, Abner Scott and Mrs. H. A. Scott, for a tract of ninety-one acres in Erie county, late the estate of John Scott, deceased, under whom both parties claim.</p> <p>The plaintiff below claimed under an “ indenture,” dated November 22d 1849, by which John Scott, “in consideration of the sum of natural love and affection which he, the said John Scott, hath and beareth unto the said John W. Scott, as also that the said John W. Scott hath this day agreed to live with the said John Scott, and labour for and assist him in working the land hereinafter described, and to maintain Patience Scott, the wife of the said John Scott, if she survives him, during her natural life,” conveyed to his son, the said John W. Scott, a tract of land in the county of Erie, with reservations as follows :—</p> <p>“ Excepting and reserving nevertheless the entire use and possession of said several described pieces and parcels of land, with the appurtenances, unto the said John Scott and his assigns, for and during the term of his natural life, and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor, to have and to hold the said described pieces of land, after the decease of the said John Scott,” to the said John W. Scott, his heirs and assigns, &c., * * “to the only proper use and behoof of the said John W. Scott (after the death of the said John Scott), with general warranty, 1 subject to the life estate of the said John Scott f ” the deed otherwise being in the ordinary form.</p> <p>After the conveyance the son left his father; returned again ; refused to labour for his father, and assumed the whole control of the land. The father left the premises, and the son, after request, having refused to deliver them to him, he brought ejectment, and recovered them.</p> <p>The father afterwards made a will, dated February 26th 1861, and proved May 20th 1864, as follows:—</p> <p>“ I do hereby revoke, annul, and make for ever void all other wills by me at any time made, and particularly a certain will and testament (in form as a deed), recorded in the recorder’s office of said county of Erie, in Deed Book U., at page 716, &c., witnessed by Miron Hutchinson and George H. Cutler. And I hereby give and assign as the reason of revoking and making void said will, that my son John W. Scott and his wife have failed to treat me with filial affection, and to comply with the conditions upon which I made said will. I give and bequeath unto my daughter, Barney P. Turner, wife of Alexander Turner, $75, to be paid out of the first moneys that shall come to the hands of my executor, after paying my just debts and funeral expenses, and expenses of settling my estate. Subject to the above, I give and bequeath all my personal property and real estate, of whatever name and nature, and wheresoever situated, to my daughters, Nancy Holliday, Anna Sanford, and Parney P. Turner, and my son Abner Scott, to be equally divided between them, to them and their heirs and assigns for ever. Subject to dower and share of the same belonging by law to my wife, Patience Scott, should she survive me.”</p> <p>Patience Scott, the wife, died before her husband.</p> <p>The defendants below entered into the possession of the pre- ' mises in question after the death of John Scott, and claimed under his will.</p> <p>On the trial, before Derrickson, A. J., the defendants offered in evidence “ the deposition of Henry Beaufoy, taken in a former suit of John Scott v. John W. Scott, No. 106, February Term, 1861, to show the bad treatment of John W. to his father, and his failure to live with and labour for him, as called for in the deed given in evidence by the plaintiff. This the plaintiff’s counsel objected to — as irrelevant and because the deed is not subject to conditions. The defendants further offered to prove, in connection with the preceding offer, that the plaintiff turned his father out of the possession of the land, and compelled him to resort to an action of ejectment to regain possession, and to bring an action of replevin to get back some personal property, in both of which the father was successful; and also that the son, John W., soon after the making of the deed by the father to him, left the land and went West, when his father told him that if he did go he would forfeit all right to the land. This, too, was objected to by the plaintiff’s counsel as being wholly irrelevant; and the evidence under the several offers was rejected.”</p> <p>The verdict was for the plaintiff.</p> <p>The defendants brought the case into this court, and here ' assigned for error the rejection of the foregoing offers.</p>

<p>1. A father executed an “ Indenture” to his son, with general warranty, for a tract of land in fee, in consideration of love and affection, performing certain services and maintaining grantor’s wife if she survived him, reserving the land to the grantor for his life, the “ conveyance in no way to take effect until after his decease” Held, that this was a testamentary instrument, and therefore revocable.</p> <p>2. If any effect is to be given to the words of reservation, they limited the fee to take effect in futuro, which at common law can be done only when an estate is granted, not reserved.</p> <p>3. The essence of the definition of a will, is that it is a disposition to take effect after death; and, whatever the form of the instrument, if it vests no present interest, but only direct what is to be done after the death of the 'maker, it is testamentary.</p> <p>4. The covenant of general warranty would protect the consideration and enable the son to recover damages if he rendered the services, but will not change the operative words of the grant; for, these words being limited to take effect only after the death of the grantor, were revocable Words.</p>

<p>Error to the Court of Common Pleas of Allegheny county. ■</p> <p>Paul, the plaintiff below, was the owner of flatboats, and was in the business of freighting metal from furnaces on the Allegheny river to Pittsburgh. He had brought down two boats, each loaded with one hundred and seventy tons of metal belonging to Alexander Laughlin, of Pittsburgh, and landed the boats on the river above the upper bridge, on the Pittsburgh side.' Hays, the defendant below, owned the steam towboat, Jacob Painter, and was employed by Paul to tow his boats one to Browns town and the other to South Pittsburgh. Hays undertook the job, saying, that “ he could drop the two around the-same.as one; could take two as safe as one.” The towboat was placed between the two flatboats. The hands of the flatboats were directed by “ the steamboat” to stand on the front of the flatboats, and, when told, to pull. As the boats went through the bridge the hands of the flatboat saw they would strike — but they did not dare to pull till they were told, as the steamboat had the control. As the boats came to the pier, the flatboat hands were told to pull, and did so ; but before they got half a stroke the right-hand boat struck the pier, glanced off and struck the steamboat, broke the side of the left-hand flatboat, and the water commenced pouring in; this boat sunk and was lost. At some time between the striking and the sinking the flatboat hands escaped from the boat.</p> <p>On the trial the defendant submitted the following points : —</p> <p>1. That the owners of a steamboat employed in towing boats are not common carriers, and are only bound to take such reason'able degree of care and attention, that the owner of the boat or raft towed shall incur no damage or loss through the negligence or default of the owner of such steamboat or of his servant.</p> <p>And the defendant in this case can only be held liable for not using such a reasonable degree of care and attention as is mentioned in this point.</p> <p>2. That in actions for negligence the burden of proof is upon the plaintiff, and the law will not presume it for him.</p> <p>3. That the plaintiff in this case was bound to use ordinary and reasonable care and diligence for the preservation of the property towed by the defendant’s steamboat; and that he is not entitled to recover in this action, if his own negligence or that of his servants contributed to or was the cause of the destruction of or injury to said property. .</p> <p>4. That if the injury and damage alleged and charged in the plaintiff’s declaration were occasioned by the mutual negligence of both the plaintiff and defendant, the plaintiff is not entitled to recover damages for the loss which he has sustained.</p> <p>5. That it is an undoubted rule that for a loss from mutual negligence neither party can recover in a court of common law.</p> <p>6. That in towing said boats the defendant was only bound to exercise ordinary care and diligence, and that if he exercised ordinary care and diligence in towing them, he is not liable for the loss which arose from the accident in this case.</p> <p>7. That in a case of this hind the plaintiff cannot recover, even though the defendant was in fault, if he or his servants were guilty of any want of care or diligence, and that want of care or diligence contributed to the loss.</p> <p>8. That it was the duty of the plaintiff and his hands to aid in managing and conducting the flotilla, and to obey the directions of the defendant and his pilot in doing so; and if they were directed by the pilot to go to the oars and remain there, and they left them after r.ounding out, and their absence from the oars contributed to the loss, the plaintiff cannot recover, even though the defendant on his part may not have exercised proper care and diligence.</p> <p>9. If the plaintiff and his hands were at the oars when the pilot called to them to pull to the left, and instead of obeying the order they dropped the oars and ran away, and their doing so either occasioned or contributed to the loss, it was such misconduct on their part as will prevent the plaintiff 'from recovering.</p> <p>10. If the boats were so deeply loaded that the swell produced by the wheel of the towboat in backing threw the water into them at the stern over the top of the boards, and that either occasioned or contributed to the loss, the plaintiff cannot recover.</p> <p>11. That if the jury believe the metal boat was overloaded, either with the metal, or with it in conjunction with the water that is proved to have been in her before the accident happened, and that the overloading either occasioned or contributed to the loss, the plaintiff cannot recover.</p> <p>The court (Mellon, A. J.) charged as follows:—</p> <p>“ The chief question involved in this case regards negligence. The plaintiff imputes culpable negligence to the defendant in the management of his towboat, and in performance of the business for which he had employed him, and to this negligence the plaintiff attributes the loss of one of his metal boats and other injuries.</p> <p>“ Has the evidence disclosed such negligence, and if so, is there any other element in the evidence which prevents a recovery by the plaintiff notwithstanding ?</p> <p>“ All persons in the discharge of any work or duty, where the persons or property of others are involved, are bound to the exercise of reasonable precaution to prevent injury, and ordinary care and skill to secure safety to those whose persons or property are in their power.</p> <p>“ By the application of this principle to the defendant, he -was bound to the exercise of due and reasonable care, skill, judgment and diligence to preserve the plaintiff’s property whilst under his control.</p> <p>The degree of care, skill and diligence which the law requires, is such as would reasonably be expected of a careful, prudent man in the management of his own affairs under similar circumstances —neither more nor less. If the conduct of the defendant and his employees on the towboat come up to this standard, it is all the law requires of them. No one is liable for the consequences of unavoidable accidents or innocent mistakes.</p> <p>“ There is another principle in regard to this question of negligence that may be mentioned here. That is, the effect where there is mutual negligence. If there was negligence on both sides, by the plaintiff and his employees as well as by the defendant and his employees, which contributed to the loss, then there can be no recovery by the plaintiff; but I shall notice this further when the defendant’s points come to be answered.</p> <p>“ Another qualification is this; the care, skill and diligence required has relation to the work to be done. What would be extraordinary care and caution under some circumstances, might amount to no more than ordinary or common care and caution under others. Thus, for example, the care and caution to be exercised by a towboat pilot with a heavy tow in a part of the river obstructed with bridge piers might be no more than common, and such as would be usually exercised by all prudent pilots in the same situation, but would amount to extraordinary care and caution if observed in an open river with an easily managed tow. The same degree of care and diligence which .might be regarded as proper and reasonable in an open river with a convenient tow, and in the exercise of which no liability would attach in case of accident, might amount to culpable negligence'with an unwieldy tow in a dangerous part of the river.</p> <p>“ This consists with the rule I have laid doAvn, viz.? that the defendant is to be held to the same line of conduct ordinarily to be expected of a prudent, reasonable man in regard to his own property under similar circumstances. A party employed in any position of trust over the property of others is held to the same care and attention that he would exercise were the property his own; but in ascertaining what that care and attention is which he would exercise were the property his own, we must measure him by other prudent and reasonable men as the standard. We must compare his conduct with what we may conceive careful men would have done under similar circumstances. If he comes up to that standard it is sufficient, if he falls short of it in care, diligence or skill in the business he had undertaken and a loss has ensued, he would be responsible.</p> <p>“ With these general remarks I shall proceed to answer the defendant’s points.</p> <p>“ The defendant’s points to the eighth inclusive, affirmed.</p> <p>“ I add this explanation to my affirmance of this eighth point, viz.: It was the duty of the plaintiff and his hands to aid in managing and conducting the flotilla, and to obey direction, &c., hut they were under the orders and direction, for this purpose, of the captain or pilot of the towboat, if the towboat captain or pilot assumed their direction and control; and if sufficient orders were not given, or not given in time from the towboat, negligence may be imputed to the defendant in that as well as in any other respect. If orders were given and not obeyed by plaintiff- or his hands, the point is applicable, and in that sense affirmed. The facts in regard to it are for the jury.</p> <p>“ As regards the ninth point, the facts there supposed are for the jury. If the plaintiff’s hands stood to their oars till their lives were apparently in imminent danger, or as long as' their efforts could be expected to accomplish anything toward saving the boats, no negligence can be imputed to them. If they did as indicated in this point, whilst their lives were not in apparent imminent danger, and whilst their efforts might have availed to save the boats, the proposition in the point would be correct, otherwise not.</p> <p>“ 10. This point is affirmed. Unless there was negligence or want of ordinary care and precaution in handling or managing the towboat, and thereby the water was thrown into the flats or metal boats, responsibility would not attach to the defendant.</p> <p>“ 11. This point is negatived if intended to affirm generally, that where a towboat undertakes to tow other boats unfit to be towed, and they are lost, no liability attaches. The doctrine in regard to the question raised by this and the tenth point, I hold to be this. When the character or burden of a boat applying to be towed, is such that it cannot be towed safely, and its character or burden is such as cannot be discerned by ordinary care and attention on the part of the towboat, or is concealed, then and in that case no liability would attach to the towboat should the tow be lost on the voyage. But if the character and loading of the tow is visible and open to all — such as an open flat' loaded with metal, and her depth in the water and everything in regard to her is patent to all, it would be culpable negligence on part of a towboat captain to undertake to tow such flat if too heavily loaded, or if containing too much water to be towed with safety. The towboat captain I hold to be the best judge of what his towboat can do, and if applied to to tow a craft too heavily loaded or otherwise unfit to be towed, he should decline, or apprising the owner, make special terms as to the risk.</p> <p>“ Apply this doctrine to the facts in evidence as you may find them, and decide the question suggested by these points, Nos. 10 and 11, accordingly.</p> <p>“ The testimony in the case I leave entirely with the jury. Not having taken Ml notes, I wish to suggest no opinion as to its weight or effect on either side.”</p> <p>The jury found for the plaintiff $2538.35, and the defendant, having excepted to the charge of the court, removed the case into this court.</p>

<p>Error to the District Court of Allegheny county.</p> <p>This was an'amicable action to recover for loss on two policies of insurance, issued by the defendants below to the plaintiffs, numbered respectively 359 and 360, dated March 24th 1864, for $5000 each, for one year, “ on petroleum oil in bulk or barrels, * * * laden or to be -laden on board the good barges trading between the.wells on Oil Creek, Allegheny river and Pittsburgh” (in No. 359), and in “ barges trading between Oil City and Pittsburgh”- (in 360). On each policy was endorsed “Forty-eight hours allowed after arrival for unloading.”</p> <p>The perils insured against were those of the “lakes, seas, rivers, canals, railroads, fires, jettisons, that have or shall come to the hurt, detriment or damage- of the'said property or any part thereof.” The risk on. one policy was at 8 per cent, premium, and on the other at 9 per cent.</p> <p>Oil City is on the Allegheny river, at the mouth of Oil Creek, and the “ wells” are on the creek above.</p> <p>About April 7th 1864, a quantity of oil in bulk was put into a “ good barge” for plaintiffs at the “ wells” and brought down to Oil City, where more oil in bulk was added, making seven hundred and forty-three -barrels in the whole in bulk, and forty barrels in barrels, which were put on the deck. There were also one hundred and forty barrels of oil in barrels put on a steamboat belonging to plaintiff, and the barge was taken in tow by the steamboat and brought to Forsyth’s landing, near Pittsburgh. After the barge was moored in a safe harbour, the forty barrels were taken from the barge and the one hundred and forty barrels were taken from the steamer and put on the barge for the purpose of being landed. This was done by direction of the plaintiff’s agent, if the captain thought it would be safe. The barge was from five to eight inches out of the water after the one hundred and forty barrels were put on board, and was carefully tied. About dusk the steamer left the barge. At eleven o’clock the barge was examined and found to be safe. Next morning the stern was submerged, five barrels gone from the deck and all the oil lost from the hold. There was evidence that there was a scratch on the side of the barge, as if struck by some floating object; also that the risk was not increased materially, if at all, by putting the one hundred and forty-three barrels on the deck of the barge, some witnesses testifying, however, that the risk would be increased under certain circumstances, which might cause the barrels to move.</p> <p>On the trial the defendant, amongst other points, submitted the following: — ■</p> <p>1. That the putting on the deck of the barge of between one hundred and forty and one hundred and fifty barrels filled with oil after she had arrived at the place of destination and been moored safely, was such a departure from the contract or contracts of insurance in this case as.discharged the defendants from their liability, without reference to whether the degree or period of the risk was thereby increased or not.</p> <p>3. That the plaintiffs are not entitled to recover under policy No. 359, the same purporting to cover oil in bulk or barrels, contained in barges trading between the wells on Oil Creek and Pittsburgh.</p> <p>4. If the court should decline to affirm the third point they are requested to charge that the'plaintiffs are not entitled to recover on both policies to the extent of their loss; but if entitled to recover on both policies, then only to the amount of $5000 — the amount of each policy, with interest from the time the loss was payable.</p> <p>8. That under all the evidence in the cause the .plaintiffs are not entitled to recover.</p> <p>The -court (Hampton, P. J.) reserved the first point; and on the third and fourth points charged that the testimony raised “ a .mixed question of law and fact; the former for the determination of the court, the latter for the jury.</p> <p>“ The question of fact for you to determine is, whether this 143 barrels being placed on the deck of this barge exposed the oil in it to any greater danger of being lost, either by the boat being struck by any floating body, or by the violence of the winds or waves, or of being sunk by the increased weight, than it would have been if they had not been placed there ? Or, in other words, was this oil in bulk — that is, in the barge — in greater danger of being lost with the barrels on board, than it would have been without them ? You will determine whether the loss was in whole or in part the result of the .-plaintiffs’ conduct, in using the deck of the barge as a place of temporary storage, or deposit of property not covered by the policy ? And if you so find, then we instruct you, as matter of law, that the plaintiffs are not entitled to recover, and your verdict should be for the defendants.</p> <p>“ But if you should find otherwise, that is, that the danger was not increased or enhanced by these barrels being placed there, then you will find for the plaintiffs the cash-value of the oil in bulk, at the time of the loss, with interest thereon, from the time it ought to have been paid, according to the terms of the policies of insurance.”</p> <p>The court refused all the other points of defendant. The jury found for the plaintiffs $6423.33, subject to the.opinion of the court on the point reserved. •</p> <p>Hampton, P; J., afterwards delivered the opinion of the District Court on the reserved point, after stating the facts, as follows:—</p> <p>“ The main question in the cause, and the one on which it must finally be decided,'is, whether the conduct of the plaintiffs’ servants in placing the 140 (or 143) barrels of oil on the deck of the barge, released the underwriters from their contract of insurance. If it did, of course they are not responsible; but if not, the plaintiffs are entitled to recover.</p> <p>“ This question was presented by the defendants’ counsel in two aspects — First, as a question of law; and second, as a mixed question of law and fact.</p> <p>“ His first position was, that the placing these barrels on the deck was a departure from the contract of insurance, which discharged the insurers, in law, without regard to the fact whether the risk was enhanced thereby or not. This question was reserved.”</p> <p>[The judge then discussed other points propounded below, which are not involved in the errors assigned here, and proceeded</p> <p>“ The point presented by the defendants’ counsel and reserved by the court is as follows, viz. :</p> <p>“ ‘ 1. That the putting on the deck of the barge of between 140 and 150 barrels filled with oil, after she had arrived at the place of destination'and been moored safely, was such a departure from the contract or contracts of insurance in this case as discharged the defendants from their liability, without reference to whether the degree or period of the risk was thereby increased or not.’</p> <p>“ This idea of a ‘ departure’ from the contract of insurance comes under the head and arises out of the law on the subject of ‘ deviation’ in marine policies; and is only applicable when the insured has done some act in violation of his contract. The term deviation is used to denote any unnecessary or unauthorized departure from the usual course, or general mode of carrying on the voyage insured by which the risk is altered, though the original terminus ad quem of the voyage insured is still kept in view: 1 Arnould 347. The terms 1 deviation’ and ‘ departure’ are used in most cases as synonymous. The one being used to express a variation from the usual course or conduct of the voyage — the other to denote some other violation of the contract of insurance while touching at intermediate ports. But both meaning nothing more nor less than a violation of some express or implied provisions of the contract.</p> <p>“ On this ground was the decision based in the case of Maryland Ins. Co. v. Le Roy, 7 Cranch 26, cited and relied on by defendants’ counsel. The assured there were guilty of a clear violation of their contract, by which the underwriters were discharged.</p> <p>“ That was an action of covenant brought by Le Roy and others against the Maryland Ins. Co. upon a policy of insurance on the ship John, from New York to five ports on the coast of ‘ Africa, between Castle D’Elmina and Cape Lopez, including those ports, and at and from them, or either of them, back to New York, with liberty as per order of insurance.’ The vessel was authorized by the terms of the policy to touch at the Cape de Verd Islands for the purchase of stock, such as hogs, goats and poultry, and taking in water. The .ship in the prosecution of her voyage arrived at the island of Fogo, one of the Cape de Verd Islands, on the 7th' of May 1805, where the captain received on board four bullocks and four jackasses, besides water and other provisions, and unstored the dry goods and broke open two bales, and took out forty pieces of .each for trade. The ship remained there until 24th of May. The time generally employed by a vessel in taking in stock and water at the Cape de Verd Islands, was from two to, 'three days, unless the weather should be very unfavourable ; the weather was good, and the bullocks and jackasses encumbered the deck much more .than small stock would have done. After having given in evidence the foregoing facts, the defendants’ counsel prayed the court to direct the jury that if they believed the same, then the taking the said jackasses on board the ship while she lay at the island of Fogo, was not within the privilege allowed to the plaintiffs in this cause to touch at the Cape de Verd Islands, in the performance of the voyage insured, for the purchase of stock and to take in water, and therefore vitiated the policy. This instruction the court refused to give, but instructed them that these facts did not vitiate the policy unless the risk was thereby increased. The jury found a verdict for the plaintiffs, and the defendants sued out a writ of error .and took the case to the Supreme Court.</p> <p>“The opinion of that court was delivered by Johnson, J. He says: £ The opinion prayed for was, that by taking in at Fogo an additional cargo not sanctioned by the contract of insurance, the insurers were discharged from their liability under the policy and after referring to the charge of the court below he says: ‘ In this'charge this court are of the opinion the court below erred. The discharge, of the underwriters from their liability in such cases depends, not upon any supposed increase of risk, but wholly on the departure of the insured from the contract of insurance. The consequences of such violation of the Contract are immaterial to its legal dffect, as it is per se a discharge of the underwriters, and thp laAV attaches no importance to the degree in eases of voluntary deviation. Necessity alone can sanction a deviation in any case, and that deviation must be strictly commensurate with the vis major producing it.’</p> <p>“ In order further to show that ‘ deviation’ and £ departure’ are convertible terms, and both used to denote a breach of the contract of insurance, I refer to Arnould on Insurance, vol. 1, 348. Treating of deviation and change of risk, he says: 1 The true proposition, therefore, is that every voluntary and unnecessitated departure from the prescribed course of the voyage by which the risk is varied, is a deviation, whether the risk be thereby increased or not.’</p> <p>“ In Hughes v. The Union Ins. Co., 3 Wheat. 159, the case of The Maryland Ins. Co. v. Le Roy came under review, and was approved on the ground that the assured had violated or departed from their contract by the long delay at the island of Fogo, and doing acts which tended to increase the risk, and which they were not authorized to do by the terms of,their policy.</p> <p>“ These and other kindred cases go to show that the underwriters in a marine policy, where the loss is by a peril insured against, can only be discharged by showing that the assured have deviated or departed from their contract.</p> <p>“ We are now prepared to inquire whether the case before us falls within the rule of these cases. The property insured was 4 oil in bulk or barrels, laden on good barges trading between the wells on Oil Creek and Oil City, Allegheny river and Pittsburgh. Beginning -the adventure from and immediately following the loading thereof at the port or ¡daced named, and to continue and endure until the same shall arrive and be safely landed at the port of destination,’ and for forty-eight hours afterwards for the purpose of unloading. The perils insured against were those of the 4 lakes, seas, rivers, canals, railroads, fires, jettisons, that have or shall come to the hurt, detriment or damage of the said property, or any part thereof.’</p> <p>44 Let us now inquire what were the legal responsibilities of each party to this contract.</p> <p>44 The proximate cause of the loss here was by a peril insured against, viz., the sinking of the barge ; and, for the sake of the argument, although the juty have found otherwise, let it be conceded that the remote cause was the negligence of the captain and crew in placing the barrels on deck. It was not pretended, nor could it be under the, evidence, that there was any fraudulent or barratrous design in placing them there, and therefore it could only be an act of negligence at most. And 'first, it is very clear this act was not in violation of any express provision in the policy. It expressly provides that oil in barrels may be carried on barges, which could only be done by placing them on the deck when the barge was fitted up, as is universally the case for carrying oil in bulk. And it was conceded at bar by the learned counsel for the defendants, that if the barrels had been placed there at the beginning, or at any time during the voyage, and the barge had been sunk, the underwriters 'would have been liable ; because, as he alleges, that would have been a mere act of negligence, and not a 4 departure’ from the contract. This seems to me to be a distinction without a difference. If it would have been no violation of the contract in the middle of the voyage, it is difficult to perceive how it became so after the vessel reached the harbour, and during the continuance of the risk.</p> <p>44 If the act complained of was no,violation of the express provisions of the contract, was it forbidden by any of its implied conditions ? And this leads us to inquire what were the implied conditions of these policies ?</p> <p>. 44 In 2 Arnould on Insurance 770, it is said, 4 The principle established by the more recent authorities in. this country is, that, supposing the vessel, crew and equipments to have been originally sufficient, and a captain to have been provided of competent skill, the assured has done all that he contracted to do ; and the underwriter is, in such cases, liable for any loss proximately caused by the perils insured against, although it' may have been remotely occasioned by the negligence or misconduct (not amounting to ban-atry) of the captain or crew, whether such negligence or misconduct consist in omitting some act which ought to be done, or doing an act which ought not to be done, in the course of the navigation. The same principle appears, at length, after much fluctuation in the decisions, to have been established in the United States2 Pars. Mar. Law, 212, n. 1, 225 ; 1 Phillips on Insurance, PI. 1049.</p> <p>“ The rule here stated is clearly sustained by all the modern decisions in England, from 2 B. & Aid. 72, down to 14 Meeson & Welsby 476. And in the Supreme Court of the United States, from The Patapsco Insurance Co. v. Coulter, 3 Peters 222, to The General Insurance Co. v. Sherwood, 14 Howard 365, as well as by numerous well-considered cases in several of our sister states.</p> <p>“ If this rule be applied to the present case, it will be difficult to find a violation of any implied condition or provision of the contract under consideration. The barge was shown to be good, and the captain and crew of the steamboat having it in tow competent and skilful. The assured, it is conceded, had a right, by (the express terms of the contract, to carry oil in barrels on the deck of the barge during the voyage ; and if so carried they might have remained there during the forty-eight hours allowed by the policy for unloading, after the termination of the voyage. Had this been done, and the barge been sunk, as it was, within the forty-eight hours, the underwriters would have had no defence, even if it had been clearly proven that the weight of the barrels, coupled with the manner of chalking them, was the remote cause of the barge being sunk. The case would then have been embraced by the rule established by the numerous class of modern decisions already referred to, viz.: That when the proximate cause of the loss was one of the perils insured-against, although the remote cause was the negligence of the assured, his agents or servants, the underwriters are liable.</p> <p>“ And here, perhaps, this discussion ought to close ; but I am inclined to notice a few of the modern cases, establishing the foregoing principle.</p> <p>“ The leading case in England where this question was first fully and thoroughly discussed and determined, in the way above stated, is that of Busk v. The Boyal Exchange Assurance Co., 2 B. & Aid. 72. The facts were briefly these : A Russian ship which was seaworthy at the commencement of the risk, and navigated by a competent master and crew, was compelled, in the course of the voyage from Amsterdam to St. Petersburg, to winter in a port in the Gulf of Finland, where she was left, as is usual under such circumstances, in charge of the mate, who was quite sufficient for her safe custody. Owing to the negligence of this person in not extinguishing a fire which he had lighted in her cabin, the ship was burnt while he was absent on board another vessel. The court held, that as the loss of the ship was proximately caused by fire (one of the perils insured against) the underwriters were liable, though it was remotely occasioned by the negligence of the mate.</p> <p>44 The same doctrine was laid down in a case where a quantity of sugar was lost while being conveyed from the ship to the shore, according to the usage of the West India trade, in a sloop adequately manned for the purpose, which was drifted on the rocks, in consequence of the seamen in charge of her all going to sleep, in gross neglect of their duty. Walker v. Maitland, 5 B. & Ald. 171. Abbott, C. J., says :4 In this case the immediate cause of the loss was the violence of the winds and the waves. No decision'can be cited, where, in such a case, the underwriters have been held to be excused in consequence of the loss having been remotely occasioned by the negligence of the crew. I am afraid of laying down any such rule ; it will introduce an infinite number of questions, as to the quantum of care which, if used, might have prevented the loss.’</p> <p>“'Bayley, J., in the same case says: 4Here the loss arose from the sloop, with the goods on board, having been beat to pieces by the force of the winds and waves ; and the question in this case is, whether the underwriters are exonerated from the loss, by proving negligence on the part of the crew, although the damage was occasioned by the perils of the sea. It is the duty of the owner to have the ship properly equipped, and for that purpose it is necessary that he should provide a competent master and crew in the first instance; but having done that, he has discharged his duty, and is not responsible for their negligence, as between him and the underwriters.’ The same principle is laid down in Bishop v. Pentland, 7 B. & Cress. 218, where the foregoing cases are cited and approved. See also Holdsworth v. Wise, Id. 794, and note 798, where Lord Tenterden, C. J., said: 4 We are all of opinion that underwriters are responsible for the misconduct or negligence of the captain and crew: but the owner, as a condition pi’ecedent, is bound to provide a crew of competent skill.’ Phillips v. Headlaw, 2 B. & Aid. 380 ; Dixon v. Sadler, 5 Mees. & Wels. 405, s. c. confirmed in error, 8 Id. 895 ; Redman v. Wilson, 14 Id. 476.</p> <p>44 The same doctrine is now firmly established in the United States. The first case which brought the question fairly before the Supreme Court of the United States is The Patapsco Insurance Co. v. Coulter, 3 Peters R. 222, where it was held that where a policy covers the risks of fire and barratry, and fire is the proximate cause of the loss, the underwriter cannot defend upon the ground that negligence caused the fire. Justice Johnson delivering the opinion says: 4 It was not until the year 1818 that the question was settled in the British courts, on the liability of the underwriters for a loss like the present. In the case of Busk v. The Loyal Exchange Assurance Co., 2 B. & Ald. 73, the question is fully and finally decided in direct hostility with the decision in New York; and this court- is now, for the first time, called upon to establish a rule for its own government in similar cases.’</p> <p>“ The question next came before the same court in the case of The Columbia Ins. Co. of Alexandria v. Lawrence, 10 Peters 507, where it was held that a loss by fire occasioned by the negligence of the assured or his servants, without fraud or design, is within the policy, and the underwriters are liable.</p> <p>“ Shortly afterwards the case of Waters v. The Merchants’ Louisville Ins. Co., 11 Peters 213, came before the court. Justice Story, delivering the opinion of the court, goes into a thorough examination of both the English and American cases, and lays down the rule as follows: ‘ Whether the risk of barratry is taken or not, a loss whose proximate cause was a peril insured against, is within the policy,'though remotely occasioned by the negligence of the master and crew.’ ‘ If we look,’ he says, ‘ to the question upon mere principle, without reference to authority, it is difficult to escape from the conclusion that a loss by a peril insuréd against, and occasioned by negligence, is a loss within a marine policy, unless there be some other language in it which repels that conclusion. Such a loss is within the words, and it is incumbent upon those- who seek to make any exception from the words, to show that it is not within the intent of the policy. There is nothing unreasonable, unjust or inconsistent with public policy in allowing the insured to insure himself against all losses from any perils not occasioned by his own personal fraud.’ * * * He then quotes from Bayley, J., in Busk v. Royal Ex. Ass. Co.:</p> <p>‘ The underwriter being therefore liable primd facie, by the express terms of the policy, it lies upon him to discharge himself.. Hoes he do so by showing that the fire arose from the negligence of the master and mariners ? If, indeed, the negligence of the master would exonerate the underwriter from responsibility in case of loss by fire, it would also in cases of a loss by capture, or perils of the sea.’</p> <p>“ Other portions of this elaborate opinion, bearing directly on the question before us, must be omitted for want of space.</p> <p>“In The General Mutual Ins. Co. v. Sherwood, 14 Howard 365, Curtis, J., says: ‘ Where a peril of the sea is a proximate cause of the loss, the negligence which caused that peril is not inquired into ; not because the underwriter has taken upon himself all risks arising from negligence, but because he has assumed to indemnify the assured against losses from particular perils, and the assured has not warranted that his servants will use due care to avoid them.’</p> <p>“In Nelson et al. v. Suffolk Ins. Co., 8 Cushing 496, Fletcher, J.v says: ‘The great principle now established is, that if the master, vessel, officers, crew and equipments are competent and sufficient at the commencement of the voyage, the assured has done all that he contracted to do. He did not guarantee the faithfulness and vigilance of the master and crew, and he is not responsible for their negligence; but for the conduct of the master and mariners in the practical navigation and management of the vessel after the commencement of the voyage, the insurers are responsible, provided the actual loss arise from one of the perils insured against, though such peril may have occurred in consequence of the negligence or carelessness of the master and crew.’ He further says : ‘ When a peril insured against actually happens, all the negligence connected with it is at the risk of the underwriters, and all the consequences of the negligence fall on them.’</p> <p>“ In Perrin v. The Protection Insurance Company, 11 Ohio R. 147, it was held that in an action on a policy of insurance it is no defence to show that the loss was occasioned by negligence in the agents of the insured.</p> <p>“The Supreme Court of our own state adopted the same rule in the case of The American Insurance Company v. Insley, 7 Barr 223, where it was held that it is no defence to an action on a marine policy of insurance that a loss directly caused by a peril of the sea happened through the negligence of the captain and crew. Gibson, O. J., after stating that the rule in England on the subject of the negligence of the insured had been changed, says: ‘ In America the lead of the English courts has been followed, in effect, by the Supreme Court of the United States, and by the courts of Massachusetts, Maryland, Louisiana and Ohio, all, but the last, seaboard states; and the question is, whether we shall fall in with the tide or stand out on the ground of the old English law ? It is true, that the courts of New York have not yet abandoned their primitive decisions, but in that respect our position is a more favourable one, standing as we do, unfettered by any precedent of our own. The courts of Massachusetts, however, have abandoned theirs, and have embraced the new doctrine, though they had at first proceeded in a different direction — a sure proof of its convenience and justice.’</p> <p>“ Again: he says, ‘ Public policy requires no more than that a man be not suffered to insure against his own knavery, which is not to be protected or encouraged by any means; for although the maxim respondeat superior is 'applicable to the responsibility of a master for the acts of his servants, yet the insured, so long as he acts with fidelity, is answerable neither for his servants nor for himself. Thus we see that there is nothing impolitic, unreasonable or unjust in the modern doctrine, and why shall we not adopt it at the outset ? The law of insurance is a branch of the public law; and I feel myself as firmly bound by the decisions of the English and American courts, in. regard to it, as I do by our own.’</p> <p>“ With this array of authorities before us it is impossible to discover any fact jn this case sufficient to discharge the defendants from their liability as underwriters.</p> <p>44 By the express terms of the contract the plaintiffs had the right to place these barrels on the barge at the commencement, and carry them there throughout the entire voyage, and keep them there for forty-eight hours after it was determined. And it could be no violation of that right to put them there at any time during that period. And if sufficient care or. caution was not observed either as to the number of barrels put on the deck of the barge, or the manner of chalking them, so as to render the boat more secure, it was nothing more than an act of negligence, which, we have seen, cannot avail the defendants. -There ivas, therefore, no 4 departure’ from nor violation of any express provision of their contract.</p> <p>44 The plaintiffs provided a vessel entirely seaworthy, with all the necessary equipments for the voyage, and officers and crew competent and skilful; and therefore there was no violation of any implied condition in the contract. The loss occurred by one of the perils insured against, and therefore the defendants are responsible.</p> <p>44 Let judgment be entered on the verdict, on the question of law reserved.”</p> <p>In this court the errors assigned were:—</p> <p>1. The court’s refusal of the defendants’ third point.</p> <p>2. The refusal of the fourth point.</p> <p>3. The refusal of the eighth point.</p> <p>4. Entering judgment on the reserved point.</p> <p>5. Instructing the jury that the plaintiffs might recover their actual loss under both policies.</p>

This was an action of debt, upon the official bond of II. Woods, sheriff of Allegheny county, brought against his sureties after his death. The breach of condition alleged, was the failure to pay over on demand the sum of $100, collected on a fi. fa. issued at the suit of Simpson the relator. The narr. did not set forth any judgment, as a foundation for the writ of fi.fa., nor was any evidence of such judgment offered on the trial.

<p>A prosecution for a criminal offence being ended, an action on the case is the proper remedy for malicious prosecution.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>This was an action of debt against the executors of Thomas Blackmore, on his official bond as treasurer of Allegheny county.</p> <p>Blackmore was treasurer of the county from January 1st 1856 to January 1st 1858.</p> <p>Caleb Bussell, tax collector in the First Ward of the city of Pittsburgh, appeared to be indebted to the county.</p> <p>June 16th 1851, judgment was entered in favour of the county against Russell and his sureties, on his official bond, for $3053.16.</p> <p>On the settlement of Blackmore’s account for 1851, a loose receipt was produced by Russell before the county auditors, signed by Blackmore to him, for $1000. Blackmore alleged that this was the duplicate of another receipt for the same amount in Russell’s receipt-book, and that the date had been altered. The auditors, without other evidence than Blackmore’s statement, and his book and an examination of the receipt, came to the conclusion that it was Blackmore’s signature, but that it had been altered. They definitely rejected the receipt, and settled Black-more’s account without charging him with the $1000.</p> <p>This was about the beginning of the year 1858 ; the auditors’ report was duly approved April 11th 1858, and no appeal was taken.</p> <p>On the 15th of February 1862, and after the death of Black-more, on the application of Russell, the court awarded an issue to try whether Russell had paid the county his indebtedness, and a verdict was found against him for $2 only.</p> <p>The county then brought suit against Blackmore’s executors to recover the $1000, which the auditors had refused to charge against him.</p> <p>On the trial the above facts appeared, and under the charge of the court the jury found for the county $1345, subject to the question reserved for the opinion of the court in banc, “ Whether the auditor’s report for the year 1851, in connection with the testimony of defendants as to the action of the auditors, in relation to the payment in controversy, concludes the plaintiffs in this suit ?”</p> <p>The court (Sterrett, P. J.) afterwards delivered the opinion of the court, and directed judgment to be entered for the plaintiff on the verdict.</p> <p>This was assigned for error.</p>

<p>Error to the Common Pleas of Allegheny county.</p> <p>In the couvt below this was an action of assumpsit by A. W. Foster and A. W. Foster, Jr., trading as Foster & Co., against William H. Brown.</p> <p>The foundation of the plaintiffs’ claim was the following paper:—</p> <p>“ Pittsburgh, July 5th 1864.</p> <p>“To W. H, Brown: — We agree to take the machinery of Bnwena, as it now" lies in a flat on Monongahela river, make one new boiler, new branches for mud receiver, stand-pipe and steam drum, two new sheets in mud receiver, and lengthen it to suit the boilers, fire bed, breeching, chimneys and all wrought-iron work complete (not including repairs to old boilers), also nigger boiler complete; make new shaft, ten and one-half inches at journals, twenty-seven feet long, four flanges, collars, cranks, wrists, pillow blocks, cams and frames and brasses; also lengthen old pitman stubs and make new pitman, new throttle and fire-front and grate bars, and set work up on boat complete, for ninety-four hundred and seventy-five dollars ($9475). (Any repairs and materials furnished, preparatory to setting up, to he cfutrged at customary prices.)</p> <p>“ One-half payable during the progress of the work, and balance in promissory notes, at three and six months.</p> <p>“ Work to be done by October 1st 1864.</p> <p>“ (Signed)</p> <p>“ Foster & Co.</p> <p>“ Wm. H. Brown.”</p> <p>The work was not done until December 15th 1864. There was evidence that the defendant did not bring the hull of his boat to the wharf to receive the machinery till too late to complete it by October; and that plaintiffs were hindered by the maker of the pipe who was employed by defendant, with which plaintiffs had nothing to do.</p> <p>The defendant paid 15012 during the progress of the work. The plaintiffs in their bill of particulars claimed $3456 beyond the sum specifically mentioned in the contract, for “ repairs and materials furnished preparatory to setting up.”</p> <p>The main subject of controversy was the construction of the agreement, especially the part in parentheses.</p> <p>On the trial the plaintiffs offered, — 1. The paper of .July 5th 1864, above mentioned.</p> <p>2. Evidence as to certain portions of the machinery not specifically mentioned in the agreement; both of which were objected to by the defendant, but received by the court and exceptions noted.</p> <p>3. Defendant offered to prove what was understood at the making of the contract, as to what were the materials and repairs-to be furnished preparatory to setting up the work — rejected by the court and exceptions noted.</p> <p>The defendant also submitted the following points.:—</p> <p>1. That under the proper construction of the contract in evidence, the plaintiffs were bound to take the old machinery of the Rowena, make the new parts, and set it up complete for the round price mentioned, and were only entitled to charge for extra work rendered necessary by the condition of the boat receiving the machinery, in setting up the said machinery.</p> <p>2. That the proper construction of the parenthetical clause of the contract in regard to “repairs and materials,” authorizes the plaintiffs to charge outside the contract price, only for repairs and materials furnished strictly as preparatory to setting up the machinery when complete and ready to be set up, and does not authorize them to charge for fitting up and repairing the old machinery, except as to repairs done to the old boilers.</p> <p>4. That plaintiffs under no aspect of this case can recover for the deferred payments, the credit allowed not having elapsed from the time the work was complete.</p> <p>5. That the proper measure of damages under the defendant’s pleas is, what it would have cost the defendant to hire such a boat as the “ Bee” during the time plaintiffs’ work was in default; also the time lost, and cost of repairs done on account of defects in plaintiffs’ work.</p> <p>6. If the court refuse to charge as requested in the last point, they are requested to charge that the defendant is entitled to recover from the plaintiffs, as damages for default in not having the boat ready, what the jury may believe the boat could have earned during the time, making allowance for expense of running, insurance and wear and tear of boat.</p> <p>To which the court (Mellon, A. J.) answered:—</p> <p>“ 1. Answered in the negative. The contract provides for payment beyond the named sum, for repairs and materials necessary to setting up the machinery. It was the old machinery of the Rowena that was in contemplation; new parts were to be supplied, and alterations to be made, and in setting them up complete, certain repairs of the old machinery, not foreseen, might be necessary; and I take it, that these repair’s, and the materials therefor, as well as the repairs and materials necessary to adjust the machinery to the new boat, were covered by the contract.</p> <p>“ 2. Answered in the negative. The term complete applies to the machinery set up. The work is to be set up complete; all the new work and alterations of the old work stipulated for are to be done under the named price, and of course no repairs on them can be charged or allowed; but other parts are to be adjusted, and all to be set up complete, and in this and setting it up on the new boat, repairs and materials may become necessary, which are within the scope of the contract.</p> <p>“ 4. It is true the defendant’s refusal to comply with the contract as to deferred payments should have been averred specially in declaration, but under our own rules and in view of the affidavit of defence, we must answer this point in the negative.</p> <p>“ 5. This point is also answered in the negative. The measure of damages in such case is the ordinary hire of such boat for the time in question — the time plaintiffs were in default — not specially what it would have cost defendant, but the ordinary hire of such boat for the time. And as to defective machinery put in by plaintiffs, the measure would be the cost of repairs or replacement of it, with the hire or rent of the boat for the time necessary to such repairs or replacement.</p> <p>“ 6. The answer to the foregoing covers this point.”</p> <p>Charge of the court: “ The answers to the points proposed by the learned counsel on both sides will give the jury a pretty full explanation of the law involved in the case.</p> <p>“ The written contract between the parties, which is in evidence, is to be duly regarded, and have full force in every particular. Viewing this contract in the light of the circumstances under which it was made, we find Mr.-.Brown, the defendant, with the machinery of an old boat. He wished to have it converted into machinery for a new boat of different character and dimensions. To this end part of this old machinery required removal from the flat in the river where it lay, to the new boat, and parts requiring repairs or alterations to the shop of a machinist, and thence to the new boat, and then, together with new parts to be supplied, it was to be set up complete on the new boat.</p> <p>“ In view of this, the present plaintiffs (machinists) proposed and undertook, for the sum named in this contract, to take the old machinery as it lay in the flat and alter the mud receiver by lengthening it to suit the boilers, and also lengthening the pitman straps, and to make the following items new, viz.: one boiler, branches for mud receiver, stand-pipe and steam drum, two sheets in mud receiver, fire bed, breeching and chimneys, nigger boiler, shaft ten and one-half inches at journals and twenty-seven inches long, four flanges, collars, cranks, wrists, pillow blocks, cams and frames and brasses, one pitman, throttle and fire front, and grate bars; and all wrought-iron work complete, excepting repairs to old boilers; and to set all up complete on the new boat, for the price or sum stipulated; and besides this stipulated or named sum, any repairs and materials outside of the foregoing work which might be required and done preparatory to setting it up complete on the new boat, were to be charged in addition by the plaintiff at ordinary prices.</p> <p>“ This is my reading of the contract; and accordingly any new items of machinery furnished (if any), and not enumerated to be done under the named aggregate sum, or any actual alterations of old machinery wanting and not so enumerated or provided for in the article, together with all repairs (except on plaintiff’s own work) preparatory to setting up the entire machinery complete on the new boat, would be the subject of charge, at ordinary prices. You will remember, however, that all wróught-iron work is included in the named or stipulated price. Effect could not be given to the exception, ‘ repairs to old boilers,’ upon any other interpretation. The plaintiffs stipulate to do all wrought-iron work, except repairs to old boilers, and certain specified new work and alterations of old work for a specific sum, and be allowed, in addition, at ordinary prices, for repairs and materials preparatory to setting it up.</p> <p>“ You will apply the evidence to this interpretation, taking the stipulated sum and adding to it any items proved or admitted to have been done preparatory to setting it up, and from the amount, deducting the payments, you will find the amount which, irrespective of the defence, would be owing to the plaintiffs. In regard to interest, you should have regard to the times at which deferred payments would fall due. Then consider defendant’s defence in regard to the alleged damages sustained by the delay in not receiving his boat within the stipulated time ; and also in regard to alleged defective work of the plaintiffs. Having so ascertained the amount of plaintiffs’ claim and of defendant’s set-off or counter claim, the difference will be your verdict for the one or the other, as you may find the facts. The facts, of course, are entirely within your province to determine.”</p> <p>To the foregoing charge and answers to the respective points, both parties except.</p> <p>The jury found for plaintiffs $5709.90.</p> <p>In this court the defendant assigned for error: The receiving of the evidence of plaintiff above mentioned, and rejecting the evidence offered by the defendant; also, in refusing the defendant’s first, second, fourth and sixth points, and in charging the jury that,</p> <p>“ The contract provides for payment beyond the named sum for repairs and materials necessary to setting up the machinery. It was the old machinery of the Rowena that was in contemplation. New parts were to be supplied, and alterations made, and, in setting them up complete, certain repairs of the old machinery, not foreseen, might be necessary ; and I take it that these repairs, and the materials therefor, as well as the repairs and materials necessary to adjust the machinery to the new boat, was covered by the contract.”</p>

<p>Error to the District Court of Allegheny county.</p> <p>In the court below this was an action of covenant, by Brereton, Johnson & Wilkins, against Shreve & Tillson, on a contract by which the defendants agreed to deliver to the plaintiffs, at the “ Aladdin Oil Words, in bulk or barrels, for one year from” February 1st 1862, one thousand barrels of petroleum per month, at 6-J cents per gallon, “ to be measured in the tanks,” at the oil works ; payment to be made monthly, in cash and notes of plaintiffs at four months. Defendants “ to have the privilege of delivering in advance * * during the spring and summer months not exceeding two thousand barrels, and during the fall and winter months not exceeding three thousand barrels,” but not to exceed twelve thousand barrels in the year; and no more than one thousand barrels to be settled for at the end of any one month. If defendants should fail to keep up the supply at the oil works, “ in pursuance of their contract,” plaintiffs “ to be at liberty to buy any deficiency of petroleum at market prices, and to charge any difference in price, freight, &e., to Shreve & Tillson, who agree to pay the same.”</p> <p>“ And for the full and faithful performance of all the conditions” of the agreement, the parties bound themselves to each other “ in the sum of $10,000, not as a penalty, but as stipulated damages.”</p> <p>Defendants delivered, by the middle of July, five thousand barrels, which were paid for by plaintiffs. On August 19th, defendants wrote to plaintiffs:—</p> <p>“Dear Sirs: — The water in the river is so low that I fear we will not be able to get down enough oil to make out the 1000 barrels for this month. It is not our fault there not being enough there, for we had a fleet stop there in July, which you could not receive. What we want is this: should we not be able to get the oil down this month, we want to give you 2000 barrels in September, and settle for both August and September on the 1st of October. If this arrangement is satisfactory, please let us know immediately. The proceeds of your note have been duly received.”</p> <p>This letter was not answered by plaintiffs, who, November 11th, served the following notice on defendants:—</p> <p>“You are hereby notified that the supply of petroleum or rock oil has not been kept up at the Aladdin Oil Works, as contracted for in your contract with us, dated the 21st day of January, A. D. 1862, and modified on the 2d day of April, A. D. 1862. That it has become necessary for us to purchase in open market a supply of petroleum for the purpose of carrying on our works, and that we will, in pursuance of the contract aforesaid, purchase whatever oil we may require at the market rate, and charge to you whatever difference there may be in such market rates over your contract price, together with freight, &c.</p> <p>“ In addition to such charges against you, we shall also claim the stipulated damages mentioned in said contract for non-fulfilment of its conditions.”</p> <p>There was no answer from the defendants to this notice, nor did they deliver any more oil to plaintiffs.</p> <p>The price of oil was considerably below the contract price from March to July, and rose very greatly from September forward. The plaintiffs purchased, from December to April, seven thousand barrels, the deficiency in quantity mentioned in the contract, and charged the defendants the difference between the contract and market prices, amounting to $25,436.53.</p> <p>As to the readiness of plaintiffs to receive the oil when brought to their landing, to have it measured, &c., there was evidence on both sides, which was conflicting.</p> <p>The defendants submitted a number of points to the court, which are comprised in the following:—</p> <p>1. That if the plaintiffs refused to receive the oil tendered by the defendants according to the contract, but suffered it to remain in the boats for a long time, by which the oil was lost or liable to be lost, the defendants were not bound to deliver any more, at least until plaintiffs notified them that they were ready to receive it.</p> <p>This was affirmed by the court, with the qualification, if such refusals, &c., had not been waived or acquiesced in by the defendants.</p> <p>2. That the burden was on the plaintiffs to show affirmatively that they were ready and willing to accept the oil when left at the place fixed in the contract, and that there was no evidence of such readiness;</p> <p>This the court denied.</p> <p>3. That if the plaintiffs were entitled to recover at all, they could not recover more than $10,000, the sum named in the contract as damages for its breach by either party.</p> <p>This was reserved for the judgment of the court in banc, and Williams, A. J., further charged:—</p> <p>“ The jury will then determine, 1st, whether the plaintiffs have been guilty of any such breach or breaches of the contract sued on, either in refusing to receive oil tendered by the defendants according to the terms of the contract, or in suffering oil to remain in the defendants’ boats and barges an unreasonable length of time before pumping the same into their tanks and measuring it, as would justify the defendants in rescinding the contract, and refusing to deliver any more oil under its provisions ? If the jury find that the plaintiffs were guilty of any such breach or breaches of the contract, they will next inquire and determine whether the defendants waived the said breach or breaches at the time of their happening thereof, or at their subsequent settlements ? If the jury find that the plaintiffs were not guilty of any breach of the contract, or if they were, that the defendants waived any and all such breaches, then the plaintiffs may maintain this action and recover such damages as the evidence shows they have sustained in consequence of the defendants’ refusal to deliver the residue of the oil stipulated for in the contract. But if the plaintiffs were guilty of any breach of the contract on their part, and the same was not waived by the defendants, and if the jury shall find in accordance with the instructions of the court, that such breach or breaches of the contract were sufficient to justify the defendants in rescinding the contract and refusing to deliver any more oil, then the plaintiffs will not be entitled to maintain this action for the defendants’ refusal to deliver the residue of the oil mentioned in the contract.</p> <p>“ 2d. If the plaintiffs were not guilty of any such breach or breaches of the contract as would justify or excuse the defendants’ refusal to deliver the residue of the oil contracted for, were they guilty of any failure or refusal to perform their part of the contract by reason of which the defendants suffered or sustained any damage ? If the jury so find, and such failure or refusal to perform was not waived by the defendants, then they will be entitled to defalk the damages so sustained by them from the damages-sustained by the plaintiffs in consequence of the non-delivery of the residue of the oil.</p> <p>“ But if the plaintiffs did not fail to perform the contract on their part, or if their failure was waived by the defendants, then the plaintiffs will be entitled to recover such damages as they have sustained in consequence of the defendants’ refusal to deliver the oil.</p> <p>“ The defendants had delivered to the plaintiffs five thousand barrels of oil by the middle of July, and it is admitted and agreed that this was all that they were bound to deliver by the terms of their contract prior to the month of August. But by the terms of their contract they were bound to deliver one thousand barrels during the month of August, and one thousand barrels during each month thereafter until the whole quantity contracted for should be delivered. On the 1st of December 1862, when the plaintiffs began to purchase oil and charge the defendants with the difference between the contract and the market price, the deficiency for the four preceding months amounted to four thousand barrels. The defendants contend that the plaintiffs were not entitled to purchase the whole amount of the deficiency at the market price of oil in December, and charge them with the difference between the contract and the market prices for the whole quantity deficient, but only for the deficiency of the preceding month of November, viz.: one thousand barrels. It seems to me that they are right in this. The damages are to be measured and estimated as of the time of the breach, and not as of the date of the purchase after so long a delay. The evidence shows that the price of oil was advancing rapidly from October to December, when it attained its maximum. It would not be equitable that the plaintiffs, under such circumstances, should delay from the 1st of September, when they might have begun to purchase the amount of the deficiency for the preceding month, until the 1st of December, and then purchase the whole amount of the deficiency of the four preceding months at the then greatly increased market rates, and charge the defendants with the whole difference. They might purchase the whole quantity then, but they can only .recover the difference between the contract and the market price as of the date of the breaches or within a reasonable time afterwards.</p> <p>“ There is no evidence as to the price of oil in the month of September, and the presumption, in the absence of all evidence as to the price, is that it did not exceed the contract price, and if so, the plaintiffs were not damnified by the failure of the defendants to deliver the one thousand barrels during the month of August, and the jury would not be justified in allowing any damages for the non-delivery of the oil for that month. But there is evidence as to the price of oil in the month of October, and the jury would be justified in allowing the difference between the contract price and the market price in October for the quantity not delivered in September; and so in regard to the oil deliverable during the month of October, the plaintiffs would be entitled to recover the difference between the contract and the market price in November, allowing a reasonable time for making the purchase. The defendants do not deny that if they are liable for the non-delivery of the oil, they would be chargeable with the difference between the contract price and the market price in December for the oil deliverable during the month of November. There is no question as to the plaintiffs’ right to recover the difference between the contract and the market price of the oil purchased after the 1st of January 1863, if the jury find that the plaintiffs are entitled to maintain this action for its nondelivery.”</p> <p>The jury found for the plaintiff, $25,308, subject to the question of law reserved. Judgment was afterwards entered upon the verdict, Judge Williams delivering the following opinion:—</p> <p>“ Is the sum in which the parties bound themselves, for the full and faithful performance of the agreement in this case, to be treated as a penalty or as liquidated damages ? This is entirely a question of construction, to be determined by the intention of the parties and the meaning of the words they have used. Though the parties have declared themselves to be bound in the sum specified in the agreement, ‘ not as a penalty but as stipulated damages,’ yet, if the whole agreement taken together shows that they did not intend that the entire sum should be paid for the breach of any of its stipulations, however minute and unimportant, it must be held to be a penalty merely, and not stipulated damages. But before we examine its provisions in order to ascertain the intention and meaning of the parties, it will be proper to advert to the principles which govern the construction of such agreements. The question raised here is not a new one ; it has frequently been considered and decided both by the English' and the American courts. And though there is some inconsistency and conflict in the decisions, it seems to me that the following principles must now be regarded as established and settled by the weight of authority.</p> <p>“ Where the contract contains several stipulations of various degrees of importance, as to some of which the damages might be considered liquidated, whilst for others they might be deemed unliquidated, and a sum of money is made payable upon a breach of any of them, it is to he adjudged a penalty and not liquidated damages: Green v. Price, 13 M. & W. 700 ; or, as the principle is elsewhere more fully expressed, where the covenant is for the performance or omission of various acts, which are not measurable by any exact pecuniary standard, together with one or more acts in respect of which the damages on a breach of the covenant are certain or readily ascertainable by a jury, and there is a sum stipulated as damages to be paid by each party to the other for a breach of any one of the covenants, such sum is held to be a penalty merely, and not stipulated damages: Bagley v. Peddie, 5 Sandf. 192.</p> <p>“ So where the sum which is to be a security for the performance of an agreement to do several acts, will, in case of breaches of the agreement, be in some instances too large, and in others too small a compensation for the injury thereby occasioned, that sum is to be considered a penalty: Davies v. Penton, 6 B. & Or. 216.</p> <p>“ But where the injury provided against is altogether uncertain, the sum specified is to be taken as liquidated damages: Galsworthy v. Strutt, 1 Ex. Rep. 667; in other words, where the covenant is for the performance of a single act, or several acts, or for the abstaining of doing some particular act or acts, which are not measurable by any exact pecuniary standard, and it is agreed that the party covenanting shall pay a stipulated sum as damages for a violation of any such covenants, that sum is to be deemed liquidated damages, and not a penalty: Bagley v. Peddie.</p> <p>“ The distinction between those agreements where the damages are to be considered as liquidated, and those in which they are to be regarded merely as a penalty, and the principles indicating the distinction, are also discussed and recognised in the following cases, among others which might be cited: Kemble v. Farren, 6 Bing. 141; Horner v. Flintoff, 9 M. & W. 680; Atkyns v. Kinnear, 4 Ex. Rep. 783; Reynolds v. Bridge, 37 Eng. L. & Eq. 128 ; Williams v. Dakin, 22 Wend. 201; Beal v. Hays, 5 Sandf. 640 ; and Laufman v. Cochran, 2 Smith 275.</p> <p>“ These principles, applied to the construction of the agreement in this case, lead to but one conclusion. The damages for the breach of any of its stipulations are certain or readily ascertainable by a jury, and the sum specified as security for the performance of the .agreement must, therefore, be regarded as a penalty and not as liquidated damages. Besides, any other construction would contravene one of the express provisions of the agreement. The defendants covenanted that, should they fail to keep up the supply of oil at the Aladdin Works in pursuance of their contract, the plaintiffs should be at liberty to buy any deficiency at market prices and charge any difference in price, freight, &c., to the. defendants, who expressly agreed to pay the same. They are, therefore, bound by the express stipulations of their contract to pay the full amount of the damage assessed by the jury.</p> <p>“ Let judgment be entered in favour of the plaintiffs against the defendants on the verdict for the damages assessed by the jury, with interest thereon from the date thereof.”</p> <p>The defendants excepted to the charge of the court, and assigned the same and the entering judgment on the verdict, for error.</p>

<p>Error to the Court of Common Pleas of Indiana county.</p> <p>In the court below this was an action of debt, by Alexander S. Leeds for the use of W. C. Kingsley against Alexander M. White and Benjamin F. Ruff, on two sealed notes for $2000 each. There had been a previous suit between the same parties for the same cause of action, in which on trial, April 5th 1864, the plaintiff suffered a nonsuit.</p> <p>The writ in this case issued July 29th 1864, returnable the first Monday in September, and on the day of its issue was served on White, and returned “ nihil'” as to Ruff. On August 1st declaration and copy of notes and endorsements were filed.</p> <p>A general appearance for defendants was entered by Hon. Thomas White, the time of which did not appear by the record. On September 26th judgment was taken for want of affidavit of defence for $5872.66.</p> <p>By an Act of Assembly, relating to Indiana and other counties, the plaintiff, having filed a copy of the instrument on which the action has been brought, before the return day of the writ, may take judgment by default on the third Saturday after the return day, “ unless the defendants shall have previously filed an affidavit of defence, setting forth the nature and character of the same.” The act further provides, that the affidavits may be made by the agent or attorney of either party, “ if such agent or attorney is personally acquainted with the facts necessary to make out the claim or defence.”</p> <p>In this case, September 24th was the third Saturday after the return day.</p> <p>On September 26th, after judgment had been entered, Mr. White, of counsel with defendants, moved to take off the judgment and to stay proceedings until the costs of the former action be paid.</p> <p>The motion was grounded upon two affidavits of Mr. White: one, that he was defendants’ counsel in the former case; “ that from the testimony adduced upon that trial, and his knowledge of what the witnesses would testify, he firmly believes that the defendants have a just and full defence to the plaintiff’s claim in the present action and then set out the defence. The other affidavit set out, that White the defendant was on a short visit to Indiana, and as he was about to leave in the cars the sheriff served the writ, and he handed it to the deponent to attend to it; that deponent thought it was returnable September 26th; that the defendant resided in Baltimore, and had not been in Indiana county since ; that deponent had no opportunity for consulting with Ruff, the other defendant.</p> <p>October 1st, Mr. White filed another affidavit, that he had believed that the defendants had until the following term to file an affidavit of defence ; that he did not recollect having read the Act of Assembly under which judgment was taken, and that he was under the impression that the writ was returnable “ at the present term,” not having examined the contents of the writ, &c.</p> <p>The court below refused to take off the judgment; and the case was thereupon removed to this court.</p>

<p>Error to tbe Court of Common Pleas of Armstrong county.</p> <p>This was an action on tbe case, by Samuel M. Reed against John Barnett, for maliciously issuing execution on a judgment against tbe plaintiff, known by defendant to have been paid, and causing tbe sale of the plaintiff’s goods.</p> <p>On 5th of August 1850, David Reed, and Samuel M. Reed the plaintiff, made a note to Hugh Campbell, payable in sixty days, for $1250, Avhich was endorsed by Campbell and Barnett the defendant, and discounted at the Kittanning Bank, upon a warrant of attorney, executed by the drawers and endorsers, to enter judgment in favour of the bank.</p> <p>David Reed was the principal in the note, Samuel M. Reed and Campbell and Barnett were sureties. When this note fell due, October 1th 1858, it was taken up by the note of David Reed for $1264, at thirty days; on this, Barnett alone was endorser, and it was taken up at maturity by cash, and another note of same drawer and endorser for $256; this note was afterwards paid by David Reed.</p> <p>Barnett and David Reed had, before the maturity of the second note, driven cattle in partnership, and had received for cattle sold, three notes amounting to $1609, which had been endorsed by both, and discounted by the Kittanning Bank. There was no evidence as to whether these notes had been paid or not.</p> <p>On 10th January 1861, judgment was entered on the $1250 note, in the name of the Kittanning Bank for use, against Reeds, Barnett and Campbell, and afterwards the court having directed the plaintiff to insert the cestui que use, the name of Barnett was inserted. The plaintiff’s property was sold under an execution on this judgment for $135.05 ; there was evidence that the property sold' was not removed from his premises. There was other evidence bearing on the question of malice and want of probable cause.</p> <p>The defendant submitted a number of points, which were answered by the court (Buffington, P. J.).</p> <p>On the question of damages the court charged, “ that so far as regards the damages resulting merely from the sale of the personal property, if the jury believe that it was not removed or disturbed, and wras bought in and left with the plaintiff, without any charge beyond the price bid for the same, the plaintiff cannot recover more than the amount of the sheriff’s sale, with interest from the date of payment, adding thereto any injury or damage resulting from hanging up the property by the levy, and depriving the plaintiff, S. M. Reed, of the use of it.</p> <p>“ The proceeds of sale are in the hands of the sheriff, subject to the order of the court. If no drawbacks are on them, the law would restore the money to S. M. Reed. Still, in any event, the damages -would not be confined to a nominal amount, but would be compensatory.</p> <p>“ Were the malice only such as results from a groundless act, and there is no actual malice or design to injure, the rule is compensatory damages; but where actual malice exists, a formed design to injure and oppress, the jury may give vindictive damages; that is, damages to punish the defendant for his fraud and malice. Compensatory damages are such as indemnify the plaintiff, including actual loss or injury of property, loss of time and necessary expenses, counsel fees and any other actual loss the plaintiff suffered.”</p> <p>At the conclusion of the charge the plaintiff’s counsel asked the court to say to the jury that, as S. M. Reed was a mere surety in the note, if the jury believe that it was lifted and paid by the $1264 note, the said S. M. Reed was therefore discharged from all liability on the said note, and the said note in that case could not in equity be kept alive for Barnett’s use.</p> <p>The court affirmed this point.</p> <p>The jury found for the plaintiff $424.01, and the case being removed, the following questions were argued here, by</p>

<p>1. Where'an owner of ground devotes it by parol to a public charity, permits it to be improved, encourages the expenditure of money and labour upon it, and allows those interested to enter upon its enjoyment, it is not within the Statute of Frauds; but he would be held, in equity, trustee for those erecting the building, and they trustees for the beneficiaries.</p> <p>2. Where the boundaries of the lot in such case were not fixed at the time of the dedication, but were reasonably defined at the time of suit, especially if by the donor himself, the gift will be sustained.</p> <p>4. In Pennsylvania, equity, disregarding the uncertainty of an object of charity, will not suffer it to fail, if it can be made certain by a discretionary power in those who are to apply the grantor’s bounty.</p> <p>5. But chancery will not exercise its powers for individual relief when the parties might, by some slight diligence, make certain the subject of their bargains.</p>

<p>1. If an assignee for benefit of creditors sue out a mortgage belonging to the trust, attend at the sheriff's sale, under an execution issued by him, and purchase the real estate in his own name, he buys as trustee for the creditors.</p> <p>2. If the trustee purchase with an intention to hold for himself, it is a legal fraud.</p> <p>3. Any confirmation of such sale must be upon a full knowledge of all the circumstances, and a deliberate examination by the parties interested, i. e., the cestui que trusts.</p> <p>4. The confirmation by the court of a partial account of the assignee, in which he charged himself with the “ proceeds of sale” under the mortgage, without showing that he was the buyer, and the acceptance by the creditors of their dividends of the balance of the account, without objection or complaint, is not a confirmation of such sale.</p>

<p>1. Where no judgment is obtained in a scire facias on a judgment until more than five years after the issuing of the scire facias, the lien of the original judgment is lost.</p> <p>2. A judgment-debtor having assigned his land for the benefit of creditors, such an estate in the land did not pass to the assignee as would continue the lien of the judgment for five years after the assignee’s death, without regular revival.</p> <p>3. Such assignee had no estate or interest to be bound; the judgment was not against him, and was not his debt. He was merely the agent of the assignor to distribute his estate amongst his creditors.</p> <p>4. A judgment entered for a specific sum was opened, and defendant let into a defence, the lien to remain; a verdict was found for the plaintiff generally, and not for a specified sum. Held, that the lien was continued for the amount due on the judgment.</p> <p>5. The pleas in such case being non est factum, and payment with leave, &c., the verdict for the plaintiff negatived them, and left the debt to stand, as before the opening of the judgment.</p> <p>■ 6. The lien of a judgment begins without liquidation whenever the claim in the action is for a sum certain or can be ascertained by calculation from the demand set forth in the declaration.</p> <p>7. An assignee for creditors is bound by a judgment rendered against the assignor before the assignment, and is not entitled to notice of its revival as a purchaser for value; notice to the assignor remaining in possession of the land, is sufficient.</p> <p>8. Omission to liquidate a judgment recovered on scire facias, and place the sum on the judgment-docket, will not postpone it to -prior judgments which had lost their liens. The object of the Act of March 29th 1827 is to give notice to subsequent lien-creditors and purchasers.</p>

<p>1. The service of the writ in ejectment is primd facie evidence of possession.</p> <p>2. Disclaimer is not properly a plea in ejectment; the only proper plea is “ not guilty,” which may be limited to the real point of contest by filing a description of the part of the premises for which defence is taken, and if no more is recovered than the part excluded by the description, the plaintiff cannot recover costs.</p>

<p>1. Tke possession by the obligee of a bond drawn for the signatures of four, three being sureties of the fourth, signed only by the principal and two sureties, is primá facie evidence of its delivery.</p> <p>2. In the absence of any fact going to contradict the words “ signed, sealed and delivered,” at the close of a bond, they must be taken as declaring the. truth, and the bond is complete as regards any who signed it.</p>

<p>Error to the Court of Common Pleas of Jefferson county.</p> <p>In the court below this was a mandamus to P. P. Blood, treasurer of Jefferson county, upon the suggestion of P. H. Shannon, that he was the owner of three military orders, issued by the “ Board of Brigade Auditors” to the treasurer of the county:—</p> <p>1. Dated October 26th 1858, in favour of Peter Fike, “ for services rendered in the Union Guards,” for $6, “ signed by the Brigade Auditors:”</p> <p>2. Dated November 25th 1859, in favour of “ Charles Kailor, Captain of Ringgold Artillery,” for $198, “ signed and attested by the President and Secretary of the said Board of Brigade Auditors.” On this $43.56 had been paid:</p> <p>3. Dated December 19th 1859, in favour of “ Emanuel Reitz, Treasurer of the Union Guards,” for $151, “ signed and attested by the President and Secretary of said Board of Brigade Auditors.” On this $33.22 had been paid:</p> <p>That these orders had been presented to a former treasurer, and refused, and to the respondent and refused: that the military fund in the treasury of the county is sufficient to pay them, and praying “ that a mandamus may he issued to P. P. Blood, Esq., treasurer of the said county, commanding him to pay the said orders out of any military funds in the treasury of said county, or that a rule on the treasurer may be granted, to show cause why mandamus should not be issued for the purposes aforesaid.”</p> <p>The order of Reitz showed that the sum named was “ the per diem pay of the officers and men in said company for the year 1859.”</p> <p>The treasurer answered :—</p> <p>Admitting the presentation of these orders, and alleging that at the time there “ were no moneys of the military fund in the treasury of the county; that previous to the presentation of said orders the military fund of the county was applied on orders of the commissioners, or Board of Relief;” that the -orders are not countersigned by the commandant of the brigade, nor the president of the board of officers, as required by law; that 'Kailor’s did not specify the objects for which it was issued, and was for a pro rata share of the military fund of 1859, none of which came to respondent’s hands ; that Reitz’s order specified no services rendered by him, and that the county treasurer, not Reitz, was the disbursing officer of fund; that the relator had other remedies to enforce said orders, and prayed the court “ to discharge said rule.”</p> <p>The third section of the Act of April 21st 1858, article 8 (P. L. 425), provides that the fund raised by virtue of the act “ shall be applied exclusively to military purposes for the benefit of the uniformed militia and the military expenses of this Commonwealth, and no moneys shall be paid from such fund by the county or city treasurer but upon orders of a board of officers, as provided in this act, countersigned by the commandant of the brigade or president of said board, which order shall specify on its face the objects for which such money was paid,” &c.</p> <p>By the Act of April 8th, 1862 (P. L. 314), this military fund was appropriated “ to the relief fund for the benefit of the families of volunteers,” but not “ to interfere with the payment of military orders already issued.”</p> <p>There were no other pleadings: the matter was referred to an auditor “ to report the facts and Acts of Assembly bearing on the question.”</p> <p>The auditor reported the orders, and the other facts found did not materially differ from those alleged in the suggestion and answer; on the coming on of the report the court (Campbell, P. J.) made this order: “ Rule made absolute, and mandamus decreed for the unpaid balance of orders attached to report;” and the respondent removed the case to the Supreme Court.</p>

<p>Error to the Court of Common Pleas of Clarion county, in •which this was an action of ejectment for two tracts of land, commenced August 8th 1863, and on the same day the defendant confessed judgment for the land described in the writ, to be released on the payment of $135.76, to wit: $90 on the first day of June 1864, with interest, and the remaining $45.76 on the first day of June 1865, with interest, costs of suits, &o.</p> <p>May 7th 1864, the payment falling due June 1st 1865, was assigned to G'eo. W. Arnold.</p> <p>On the 17th of August 1864, the payment due June 1st 1864 was assigned on the record to Barber and Rulofson.</p> <p>On the 11th of February 1865, on motion of plaintiff’s counsel, an habere facias was ordered to issue.</p> <p>On the 2d of May, $102.89 were brought into court, and on the 31st of May the receipt of Gr. W. Arnold, assignee, for $50.75, in full of the instalment due June 1st 1865, was filed. No deed was filed in the case.</p> <p>The error assigned was that the court ordered the writ of habere facias to issue before the last instalment of the. judgment fell due, and that no deed had been filed by the plaintiff.</p>

<p>1. A corporation can have no legal existence out of the bounds of the sovereignty which created it; it must dwell in the place of its creation.</p> <p>- 2.. A corporation chartered by two states, with the same capacities and powers and intended to accomplish the same objects, exercising the same powers and fulfilling the same duties in both states, is a distinct and separate body in each state.</p> <p>3. The legal presumption is that the members of a corporation are citizens of the state that created it; and no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit from a court of the United States.</p> <p>4. A suit by a corporation created by the concurrent legislation of two states, is a suit in which citizens of each state are joined as plaintiffs. If the defendant is a citizen of either of those states, the suit cannot be maintained in the United States courts. *</p>

<p>1. A provision in a coal-lease that the lessee “ shall carry on the digging of said coal in such a manner as to do no injury to the surface of said land, and not to spoil the coal itself, and in order to carry this condition into full effect, parties of the first part reserve the power and full right to themselves to send, from time to time, an expert into the coal-pit for the purpose of examining the manner in which said business is therein done, and. to get his approval thereto,” is not a condition, for breach of which the lessors may enter, but a covenant, for breach of which the lessee is liable in damages.</p> <p>2. Conditions that work forfeitures are not favourites of the law, and to make a provision such, must bo manifested by a clear expression of intention.</p> <p>3. Where in a lease causes of foi'feiture are specified, it is not to be inferred that there are any grounds of forfeiture, not declared to be such.</p> <p>4. The lessors having entered on the lessee for breach of condition, and he having brought ejectment to recover the possession, the burden was upon the lessors to prove a forfeiture.</p> <p>5. The lease required that the lessee should make sworn monthly returns of coal mined, and pay the rent monthly. There was no evidence of such returns, and evidence of only three payments of rent. Held, that the law concluded that no returns were made, and that other rent was not paid.</p> <p>6. The lessee agreed to mine 72,000 bushels each year, to pay a stipulated sum for each 100 bushels and to make monthly returns ; and, if he neglected to comply with the covenants for the payment of the rent, the lessors might determine the lease. The lessee having failed in these covenants, and the lessors having resumed possession, it should have been presumed that this had been done in pursuance of their right to terminate the lease, and it was error to submit to the jury whether the lessors had waived their right to terminate it.</p> <p>7. The court below charged: “ If the lessee did not pay for all the coal actually taken out from month to month, and the lessors let it stand over without saying or doing anything to enforce a compliance, or notice of an intention to do so, for more than two years, the lessee might conclude that they did not intend to insist on a forfeiture, and, if so, their remedy would be against him personally for rent in arrear.” Held,, that this was error.</p>

<p>Error to the Court of Common Pleas of JErie county.</p> <p>This was an action on the case by Elias Drake against the Philadelphia and Erie Railroad Company, for killing a cow, heifer and horse of the plaintiff by running the locomotive engine 'of the defendants over them.</p> <p>The defendants’ road was constructed through the land of the plaintiff. The declaration alleged that the defendants were bound “ by the laws of the state, or by their agreement, or by both, to erect and maintain fences on either side of the road through plaintiff’s land,” and in violation of law, and of their pbligation to erect and maintain fences, they neglected and refused so to do, whereby the cattle, &c., of plaintiff were exposed to danger by the operation of the road, and the defendants so carelessly, &c., ran their locomotives as to kill a cow, horse and heifer of the plaintiff.</p> <p>The cattle were killed as set out in the declaration, and there was evidence of an agreement by the company to build the fence.</p> <p>The court below (Derrickson, A. J.) charged that the plaintiff had no right to allow his cattle to run at large upon the road, and that if there was an agreement to fence, a violation of it by the company did not justify the defendant in allowing his cattle to go on the prohibited ground; that the omission of the company to keep their agreement would subject them to an action not in case but on the contract, and directed a verdict for the defendant.</p> <p>This was the error assigned.</p>

<p>1. The foundation for the process in foreign attachment is that the defendant is beyond the reach of process and his property within it. But if the property be without the reach of the process, there is an end of the attachment-writ.</p> <p>2. The return of the sheriff in a foreign attachment was, “ Executed by delivering to D. A. Stewart, agent of the Pennsylvania Railroad Company, a true and attested copy of the within writ, and making known the contents thereof, and summoning the Pennsylvania Railroad Company as garnishee.” Held, that this was not a proper service.</p> <p>3. The property in this case was susceptible of seizure if present; and not being present, and there being no seizure or declaration in the presence of witnesses, it was not bound by the writ, and therefore no person, was bound to answer as garnishee.</p> <p>4. In foreign attachment, the first thing is to “serve” the property, the next, the person in whose hands it is found; but such attachment may'be well executed when the officer is prevented by fraud or force from getting at the property.</p> <p>5. In such cases, the return should show the facts, and that the officer has attached as nearly according to the Requirements of the statute as possible; if the property is in the hands of the'garnishee, he cannot take advantage of his own wrong on the ground of a defective service.</p> <p>6. The expression in the act, “ susceptible of seizure and manual occupapation,” relates to the nature of the property, and not to its circumstances; if it cannot be seized because without the jurisdiction of the court, the process must end, unless there be a fraudulent removal or concealment.</p> <p>7. There must be an actual seizure of goods intended to be attached; but the seizure of part of a certain thing would bind the whole when it came to hand.</p> <p>8. Distinct parcels of goods coming into the hands of the garnishee after the service of the attachment are not bound by it.</p> <p>9. Digby v. Childs, 12 Harris 23, doubted; the Act of April 12th 1855, § 1, sets aside the rule there announced.</p>

<p>1. A defendant having committed an offence, entered into the military service of the United States. Held, that his absence in such service was temporary and did not prevent the running of the Statute of Limitations, which bars criminal proceedings when not commenced within two years.</p> <p>2. All the act requires is that the offender’s customary residence be in the state during the two years.</p> <p>3. The proviso was meant for persons escaping and absenting themselves to avoid punishment until lapse of time might enable them to return with impunity. A soldier does not belong to this class; he remains “ an inhabitant of the state or usual resident therein.”</p>

<p>Error to the Court of Common Pleas of Jefferson county.</p> <p>In the court below this was an action of assumpsit by Robert Wayte against L. Heilbruner, L. Einstine, and J. Adler, of the firm of L. Heilbruner & Co., as guarantors of the note of William Kelso for $515.</p> <p>Wayte had sold to Heilbruner & Co. a quantity of timber for $1000 ;.part being paid in cash, and the note of Kelso,'endorsed by Heilbruner k Co., for $515 was given for the balance. At the time of the transaction, Wayte told Heilbruner & Co. that he wished both their names and Kelso’s on the note, and Heilbruner & Co. told Kelso to sign it, and that he should have no trouble. It was signed and endorsed, and delivered to Wayte. There was other evidence also that Heilbruner & Co. recognised their obligation to pay the note. Wayte afterwards, when about to negotiate the note, endorsed it, writing his name above Heilbruner & Co. Suit was brought against Kelso on the note, and judgment recovered ; but before execution could be issued on it, all his property was sold under other judgments. After this Kelso was insolvent until his death. Heilbruner & Co. alleged that a large portion of the timber was rotten, and claimed a reduction of the note on that account. There was evidence on this point on both sides, amongst which was the testimony of the public measurer. ’</p> <p>The court (Derrickson, A. J.) charged the jury that the evidence proved the liability of Heilbruner k Co. as guarantors, and further:</p> <p>“ If the timber was rotten and defective beyond what Oakley, the public measurer, says it was, and it was warranted sound, an allowance should be made for it. But a conclusion of this kind is not to be arrived at without satisfactory evidence of the defect. The measurer is generally a sworn officer, and what he does is to be taken at least as primá facie evidence that his measurement was correct, and he does not pontradict this in any part of his testimony which the defendants have read. Other witnesses speak differently of the character of the timber, and it is for the jury to judge and determine between them.”</p> <p>The jury found for the plaintiff $547.66.</p> <p>In this court the defendants assigned for error,</p> <p>1. That the court said the evidence, if believed, proved the defendants’ liability as guarantors.</p> <p>2. That the court so charged that the right to an abatement on the note was made to depend upon the timber having been warranted to be sound.</p> <p>3. That the court impressed on the jury that the testimony of the public measurer was of more value on the question of soundness than the testimony of other witnesses.</p>

Error, to the Court of Common Pleas of Fayette county, in which this was an action of assumpsit, Alfred S. Patterson against Jacob S. Hayden, to recover rent for premises purchased by the plaintiff at sheriff’s sale. John Worthington and John Snider were owners as tenants in common of a furnace, with land attached, which they occupied as partners.

<p>1. Specific performance will not be decreed to a purchaser after he has permitted a long time to elapse without evincing a fixed intention to carry his contract into execution, especially if the circumstances have altered.</p> <p>2. If a party seeking performance is in statu quo and sustains no loss by remaining so, and the circumstances are so altered as to the other party as to work great injustice to him and to purchasers from him, a court of equity will utterly refuse to enforce it.</p>

against John G. Given, in which Andrew Beck, James M. Palmer and William Palmer were garnishees. Beck and J. M. Palmer, with W. Palmer as their surety, were indebted to Given on a joint and several bond for $800, secured by mortgage, which was attached on the above process, July 26th 1859, together with all other moneys due the defendant from the garnishees.

<p>Error to the Court of Common Pleas of Qamhria county, in which, this was an ejectment hy Elias Henby against William A. Murray and Anthony Warner, for a tract of land in Cambria county. Warner pleaded “ not guilty,” and judgment was taken against Murray for want of a plea. The case was .tried against Warner alone, and a verdict rendered for the plaintiff. The judgment in the case was reversed (Warner v\ Henby, 12 Wright 187), for the reason that there was nothing to connect one Thomas Jackson’s title, under which the plaintiff claimed, with the title of the warrantee.</p> <p>On the second trial the plaintiff gave in evidence a warrant to John Clark, November 80th 1793, survey of four hundred and twenty-two acres and allowance, and patent to James Wilson, a sale of the land for taxes in 1816 to Stephen Lloyd, and from him through various conveyances, the title vested in 1820 in Samuel Parker. Plaintiff further showed regular proceedings in the proper court in Massachusetts, by which Parker was declared a lunatic, and Josiah B. Richardson and Marshall Preston appointed his guardians. Also an Act of Assembly of this Commonwealth, authorizing these guardians jointly and severally to sell the John Clark tract, and other tracts of land in this state. Also a letter of attorney from Josiah B. Richardson, dated June 8th 1832, appointing Thomas Jackson his attorney in fact, in his name, as acting guardian of Parker, to sell and convey this with other tracfa of land.</p> <p>Plaintiff then showed a deed, November 30th 1840, from Jackson and wife — reciting that the title had regularly vested in him — ■ to one Beamer, and thence through several conveyances the land became vested in Henby October 5th 1856.. It was also shown that this land in 1826, being then Parker’s, was sold for taxes, and redeemed by Jackson for Parker, and afterwards assessed to the heirs of Parker, and the taxes paid by Jackson in 1838 and 1840. All persons representing the estate of Parker appeared to have acquiesced in the acts of Jackson.</p> <p>The plaintiff submitted amongst others the following points:—</p> <p>2. The court is requested to instruct the jury that Thomas Jackson, being the regularly constituted attorney in fact of the owner of the legal title, and no title or interest whatever appearing in Thomas Jackson, the presumption of law is that he sold in pursuance of his power under the letter of attorney.</p> <p>' 4. That Anthony Warner, not having paid the purchase-money nor secured the legal title, is not in the position of an innocent purchaser for value.</p> <p>5. The deed of Thomas Jackson having been executed in 1840, twenty years ago, and his constituents and those representing the estate of Samuel Parker having acquiesced all that time, the jury-may infer a ratification of the conveyance so made by him.</p> <p>These points the court (Taylor, P. J.) answered in the negative, and directed the jury to find for the defendant; which was assigned for error in the Supreme Court.</p>

<p>Appeal from the Court of Common Pleas of Westmoreland county, by Jacob Freetly, who was complainant against Henry Barnhart, respondent.</p> <p>The bill sets out that by an agreement of July 6th 1864, Barn-hart sold to Freetly one undivided eighth part of eight acres of land in Venango county, Pennsylvania, and agreed to give Freetly a deed in fee clear of all encumbrances therefor. That, in consideration whereof, Freetly gave in exchange to Barnhart one-half of his title of three leases of land in West Virginia, made to Thomas Cunningham & Co., Barnhart binding himself to be subject to all the conditions, and have all the rights and privileges contained in the leases; that Barnhart further agreed to become a partner in the Cunningham Oil Company, and was thereby constituted a partner, to bear a proportion according to his interest in all losses', &c., connected with the business of the company, and to receive a like share of profits, &c., and if a lawsuit should arise from defect of any of said leases, or violation of their terms by the Cunningham Oil Company, heretofore made, Freetly bound himself to defend the suit at his own costs. That the complainant had always been ready and willing to perform his part of the agreement; and had executed a deed of conveyance and constitution of membership, and delivered it to Barnhart according to the agreement, which Barnhart accepted; and that complainant had done whatever it was his duty by the agreement to do, and charging that Barnhart has refused to comply with his part of the agreement.</p> <p>Barnhart by his answer' admitted the agreement, but alleged that when he went to West Virginia to look after the leases, he found they had been misrepresented by the complainant; that the most valuable, if not all, had been defective or void at the beginning, or had been forfeited ; that a lease of the Duland Farm was void in consequence of part of the property belonging to a lunatic ; that the Nelson Farm, one of those leased, was owned by another company ; and that the Hull Farm, another of those leased, was claimed and occupied by another party. That the deed from Ereetly was not in accordance with the agreement; not in proper form, giving no description of the land, having neither acknowledgment nor a proper stamp — nor a covenant to defend the title according to the agreement.</p> <p>The complainant replied that the allegations of his bill were true. .</p> <p>The conveyance from Ereetly to Barnhart was as was alleged in the answer, and there was evidence tending to show the invalidity of the leases to the Cunningham Oil Company, that they had been forfeited, and also the small value of the shares.</p> <p>The court below refused to decree the execution of a conveyance, and directed the defendant to reconvey the property in the leases, and on his doing so decreed that the bill be dismissed. This decree was assigned for error.</p>

<p>1. In written instruments, the word “heirs” is to be accepted in its technical sense, unless there be something in the context to interpret it differently.</p> <p>2. Although a stricter construction is applied to deeds than to wills, yet, in deeds, the intent of the grantor, when legal, is a governing principle in their construction; this principle applies as well to the word “ heirs” as to any other part of a deed, and it will be construed a word of purchase if the intent require it.</p> <p>3. By a deed between A. Lantz, Sr., of the first part, and “the heirs of Andrew Lantz, Jr.,” of the second part, the grantor, “for the natural love and affection he hath for his grandchildren,” as well as for SI, granted certain land to the “ said party of the second part and to their heirs,” A. Lantz, Jr., being then living. Held, that word “ grandchildren” was designatio personarum, and that “heirs” was a word of purchase.</p> <p>4. The rule that a grant to the heirs of a person in being is void, is predicated of incorporeal interests which are not susceptible of livery, and does not apply to a conveyance of land in Pennsylvania, where registry stands instead of livery.</p> <p>4. Evidence of declarations of the grantor at the execution of the deed, that by “ heirs” he meant his “ grandchildren,” held to be inadmissible.</p> <p>5. Morris v. Stephens, 10 Wright 200, distinguished from this case. .</p>

<p>1. A magistrate’s certificate of a wife’s voluntary acknowledgment is not conclusive in case of fraud or constraint; but a purchaser bond fide and without notice of the fraud is excepted from this rule.</p> <p>2. It would be an onerous and unsafe rule of practice, to require every offer of evidence to state all the additional facts necessary to constitute a full case.</p> <p>3. If the connection of the evidence offered be not apparent, the court may require the party to state the additional facts to follow, which will show the relevancy of the offer, and, in doubtful cases, should always require the purpose of the evidence and the grounds of objection to be stated, and make them parts of the bill of exceptions.</p>

<p>Error, to the Court of Common Pleas of Erie county, in which, this was an issue directed by the court to try how much, if anything, was due on a judgment confessed in favour of James Skinner against the Bank of Commerce, January 24th 1861, for $3456.83, the defendant to be allowed to traverse the consideration of the judgment in whole or in part. The judgment was assigned to Charles B. Wright; the bank had failed and assigned all its assets to S. A. Davenport. The court directed the issue to be in indebitatus assumpsit, in which Wright should be plaintiff, and Davenport, assignee of the bank, defendant.</p> <p>The bank being in a failing condition, and Skinner with other creditors pressing it, the directors authorized the cashier to confess a judgment to him for the amount of his claim, about $2000. At the request of Wright, who was vice-president of the bank, Skinner consented to have other debts of the bank included in the judgment, and it was confessed by Mr. Hill, the cashier, for $3456.83 ; a transcript of this judgment was entered in Schuylkill county, where the bank owned real estate.</p> <p>The verdict was for the plaintiff for $2559.33.</p> <p>The defendant’s effort was to prove that all the assets of the bank went into the hands of Wright; that no losses were sustained by the bank, and that no assets went into the hands of other directors; to show fraud in confessing the judgment. In support of this he offered to prove by J. C. McCreary, teller and bookkeeper of the bank, and by some of the directors, that all the assets of the bank passed into the hands of Wright the vice-president; also a statement by the officers of the bank with Wright’s affidavit attached, filed in the prothonotary’s office, to show that the bank had sustained no losses, to be followed by evidence that no assets went into the hands of any director but Wright. The court rejected the offer, saying that the defendant might prove that the judgment was paid in whole or in part by assets of the bank, but not to show that they all passed into the hands of Wright, so as to draw the inference that they had been applied to that judgment. This was the first error assigned.</p> <p>The defendant assigned also the following errors to the charge : — ■</p> <p>2. The court erred in denying the defendant’s second point, which was, If the jury, from the evidence, find that the judgment in favour of James Skinner was confessed for a larger amount than what was due to him from the bank, then it was in fraud of the creditors of the bank and consequently void.</p> <p>This point the court thus answered: “ Under the evidence before us, the defendant contends that the entire judgment was void, but to this we cannot accede. Had it been confessed for more than was actually due and owing by the bank to Skinner and the others whose claims were included in the judgment, and that knowingly and purposely, the defendant’s position would doubtless be correct. But the evidence does not warrant this conclusion. The resolution of the bank limited the power of the cashier in the confession of the judgment to the amount due and owing James Skinner, and if he exceeded that, as it is claimed he did, the judgment is void for the excess.”</p> <p>3. The court erred in its charge to the jury, instructing them that “ before judgment was entered, Mr. Wright suggested to Mr. Skinner that there were certain others whom he would like to see secured, and if he would consent to have these claims embraced in the same judgment he would see the whole paid, and take an assignment of the judgment to himself. To this Skinner made no objections, and on the 23d of January 1861, judgment was entered in his favour by the confession of the cashier for $3456.83, and on paying Skinner the amount of his claim, and the others, took an assignment of it.”</p> <p>4. The court erred in charging the jury thus: “ Some time after this (after the assignment by Skinner to Wright), but how long after, the evidence does not show, the bank made an assignment to S..A. Davenport, the present defendant.”</p> <p>5'. The court erred in charging thus: “ Under the evidence before us, the defendant contends that the entire judgment was void, but to this we cannot accede. Had it been confessed for more than was actually due and owing by the bank to Skinner and the others whose claims were included in the judgment, and that knowingly and purposely, the defendant’s position would doubtless be correct. But the evidence does not warrant this conclusion. Nor is it perceivable that there was anything morally wrong in the parties making the judgment more than the resolution of the bank contemplated, if the claims of those other than Skinner’s, embraced in the judgment, were honest, which is not gravely questioned, though it was questioned whether they or some of them, existed in bills of the bank or in accounts in their favour in its books. In one shape or the other they appear to have existed.”</p>

<p>1. It is a fatal objection, that a petition for the review of a road was not presented and acted upon for two years after filing the original report.</p> <p>2. The provision of the act, directing that application for a review be made at or before the next term after the report of a view, is mandatory.</p>

<p>Error to the Court of Common Pleas, of Armstrong county, in which this was an action of covenant by Thomas H. Caldwell and PI. J.-Arnold, trading as Thomas PI. Caldwell & Co., against Washington Reynolds and Addison Leech, executors, &c., of David Leech, deceased, tried before the Hon. James Campbell, President of the 18th district.</p> <p>David Leech and others having contracted by sealed articles with the Allegheny Yalley Railroad Company to construct the whole railroad of said company, sub-let, also by sealed articles, to the plaintiffs the construction of section 43 of said road.</p> <p>After specifying the kind and manner of work, there were the following, amongst other stipulations in the articles:—</p> <p>“ On or about the first day of each month, during the progress of the work, the estimate made of the quantity and relative value of the work done on this section by the engineer of the railroad company, shall be conclusive upon the parties hereto of the amount of said work. And within ten days after the second party shall have procured a certificate of such estimate from the railroad company, the said second party shall pay to the first party hereto 85 per cent, of the amount of such estimate, agreeably to the prices contained in this contract, in cash, at their office in the city of Pittsburgh, unless the said second party shall elect to make payments along the line'; in either case the time to elapse between the receipt of the current monthly estimates and payments herein stipulated, shall not exceed ten days ;**'** and when all the work embraced in this contract is completed, agreeably to the specifications, and in accordance with directions and to the satisfaction and acceptance of the engineer, there shall be a final estimate made by the chief or associate engineer of the quality, character and value of said work, agreeably to the terms of this agreement, when the balance appearing due to said party of the first part shall be paid to said first party, 10 per cent, of the whole amount of this contract, in the capital stock of the Allegheny Yalley Railroad Company at par, and the balance in cash, in accordance with the foregoing stipulations, upon their giving a release under seal to the said second party from all claims or demands whatsoever against said second party, growing in any manner out of this agreement. * * * *</p> <p>[“ And it is mutually agreed and understood that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement, relative to or touching the same ; and each and every of said parties do hereby waive any right of action, suit or suits, or other remedy at law or otherwise, by virtue of said contract, so that the decision of said engineer shall, in the nature of an award, be final and conclusive on the rights and claims of said parties.”]</p> <p>During the pendency of the suit II. J. Arnold died.</p> <p>The claim of the plaintiffs in this suit was for work done on section 43, according to the contract.</p> <p>Estimates had been made from month to month and paid to the plaintiffs, they frequently complaining of their amount. A final estimate was made, but the plaintiffs refused to take the amount, and this suit was brought upon the allegation that there were errors and gross mistakes, which would amount to fraud.</p> <p>There was evidence, as to errors in the estimates, asking the chief engineer to settle the dispute, and his declining to act further ; tender of release by the plaintiffs, and tender of alleged balance due by defendants.</p> <p>The important question in the case was as to the right of the plaintiffs to maintain an action at law for the recovery of their claim.</p> <p>The charge of the court below, and the points of the defendants and their answers hereafter stated, present the case as considered and decided in the Supreme Court.</p> <p>The judge below, after deciding that the suit could be sustained against Leech’s executors alone, said:—</p> <p>“ The defendants further contend that the action cannot be maintained by the plaintiff, because his right of action, or resort to a court of justice is expressly taken away by the terms of the instrument itself on which suit is brought. The clause relied on for this is in the following words, and it is the last in the article of agreement: — (See the clause on page 299, in brackets.)</p> <p>“ This is a sweeping clause, binding the parties to submit all matters in dispute to the umpirage of the chief engineer, and makes his decision an award in the matter submitted final and conclusive, and further precludes either of the parties from resorting to suits, actions or other remedies in law, or otherwise. Now, the plaintiff here seeks a recovery in affirmance of this contract by an action of covenant, and directly in the teeth of this covenant, which he is as much bound to affirm as any other clause in the article. The plaintiff cannot escape the binding force of this clause, unless recourse to this tribunal is rendered no longer reasonably possible by circumstances over which he had no control, and which he could not prevent by reasonable diligence on his part. Then, unless a reference was prevented by the act of the defendant, or, secondly, by the refusal of the chief engineer to act on proper application made to him, or, in the event of the death or absence of the engineer, so that a reference to him could not reasonably be had; or, thirdly, by such gross and palpable mistake as would amount to a fraud, this action cannot be maintained, and your verdict ought to be for the defendant. A demand made on the engineer, a year or two after the work was done, to go instantly upon the ground and make a remeasurement of the work, and decide an alleged dispute, without notice to the opposite party, or giving reasonable time to the engineer, would not authorize the plaintiff to resort to an action at law, nor, if the demand was made merely to get clear of the tribunal of his own choosing, and not in good faith to obtain an adjudication on an alleged dispute, it would not avail. If notice had been given to the opposite party, and a reasonable time had been allowed the engineer to examine and make his decision, and then if he had refused, the plaintiff would have been liberated from the obligation of the contract, and could have brought his action. The demand made by Mr. Cochran was to go upon the ground, remeasure it and make the settlement, or refuse to do so, and the reply of the engineer was that he could not go then, and spoke of the stakes being removed. He was not asked to appoint a time to hear the parties and decide the case. This demand was not sufficient to enable the plaintiff to bring his suit, unless you find that his refusal was an unqualified one. With that exception we recollect of no application of the plaintiff to the chief engineer or his associate, to correct errors or decide disputes. The proper time to correct errors of the assistant engineer in charge of the work would have been as soon as the errors were detected, and while the work was in progress, when the quantity, quality and character of the work could have been examined and ascertained, and the errors corrected. Had an application been made to the chief engineer, during the progress of the work, and had he refused to act, or if he was absent, so that he could not be procured or found, and the railroad company had refused to appoint or provide another, the plaintiff would be at liberty to bring his suit. Was the reason that the plaintiff did ■not apply to the chief engineer, that he was absent and could not be found from the time he discovered the alleged errors of the assistants till he was found at the Monongahela House, in 1858 ? If so, you will then inquire whether there were such gross errors in the estimates, made by the assistant engineers, as would amount to a fraud.</p> <p>“ The evidence on this subject is for you; but we may say that all measurements made of the ground, years after the excavations were made upon a supposed natural surface of the ground, or without an actual measurement and survey of the surface and shape of the ground before and after the work was finished, must be imperfect and uncertain; a previous knowledge of the ground, without a survey and an actual measurement after, .could only approximate the amount and quality of the excavation, and would be dangerous to rely on to establish gross errors of the engineer whose business it was to measure and return the estimates of the work as it progressed; but this testimony is referred to you, together with that of Mr. Weimer, and from it you are to determine whether gross mistakes, equivalent to a fraud, were made by the engineer in* charge of the work. If you find that no such gross errors were committed, there is an end of the plaintiff’s case, except so far as relates to the balance due the plaintiff in cash, agreeably to the last, or what the plaintiff claims as the final estimate. As to that, if you believe, from the testimony, that a tender of cash and stock in the road, as provided in the contract, was made to the full amount due, and that the tender has been kept up, and produced in court, there can be no recovery in this suit for that; but, if you find that there was a final estimate and settlement of the work, upon payment of the final estimate the plaintiff was bound to give a release, under seal, discharging the party of the second part from all liability under the contract. Plaintiff alleges he has tendered a release. The evidence on this subject is likewise referred to you. We simply instruct you that the payment of the final estimate is dependent upon the giving of the release. If it has not been tendered, plaintiff cannot recover that balance in this suit. If he has, so far as that is concerned, he may. But if the engineer was absent, or if, for any cause, a resort could not be had to the tribunal appointed and provided in the article for a portion of the time between the discovery of the alleged errors and the bringing of this suit; and if at the time, and before the bringing of this suit, the want was supplied, and the plaintiff could have applied to the chief engineer, in the manner provided in the article, for the correction of alleged errors or the settlement of disputes, and if the plaintiff had notice of the fact before this suit was brought, this suit cannot be sustained.</p> <p>“ The question is, could the plaintiff have resorted to the tribunal provided in the article at the time suit was brought; and not whether he could or could not have done so at some previous point of time.</p> <p>“ If the plaintiff had commenced his action at a time when it was not reasonably possible to have had the dispute referred to the engineer, he could have sustained it; but if he waited till he could have referred it to him, and had notice of that fact, he cannot sustain the suit. ‘You will then inquire -whether the defendants, before this suit was brought, gave notice to the plaintiff to refer to the chief engineer, and whether there was such engineer to whom reference could be made if they did, and, if such reference -was practicable, the plaintiff was bound to submit the dispute to him, and cannot recover in a suit at law. If the statement in the notice to refer was not true, and if it was a mere trick, it would not avail, and the plaintiff may still, so far as concerns this offer and notice, recover.’</p> <p>“ Then, if the plaintiff, at the time of bringing this suit, could have had it referred to any chief engineer of the railroad company, and did not, no matter how many or how gross mistakes were made, we cannot correct them here unless they had been referred to him, and the gross errors amounting to a fraud had been made by him in deciding on the dispute. The jury will observe that we are not trying, in the first place, the merits of this cause, but whether we have a right to try it at all, and if, under all the evidence in the case and the instructions we have .given you, the plaintiff could have had his disputed facts submitted to and adjudicated by the chief engineer, we cannot try it, and your verdict ought to be for the defendant. If he could not, at the time he brought this suit, and there Avere such gross errors as amounted to a fraud on the plaintiff committed, you will correct such errors by alloAving him such damages as he has sustained. This covers the most material part of the case, but there are a number of points which we proceed to ansAver.”</p> <p>Points of the defendant: “ 11th. Fraud must be proved, and cannot be presumed, and even if the engineers were guilty of fraud in taking the estimates, their fraud cannot affect David Leech, nor entitle the plaintiff to recover, unless the jury find that Leech agreed to and participated in such fraud, of which fact there is no evidence in this case.”</p> <p>Answer: “ Fraud cannot be presumed, but must be proved, or facts must be found from which fraud may be fairly inferred. It would appear that Leech was one of the original contractors of this road himself, and that the plaintiff was a sub-contractor under him, at a less price, and the difference in price would seem to have been his profits. He was therefore interested equally with the plaintiff, though perhaps in a less degree, in having the largest amount of work returned in the monthly estimates. It would seem hard, therefore, that he should suffer for the gross mistakes or fraud of the officers of the railway company, unless he had sanctioned, or participated in, or at least had knowledge of it. Still, if there were such gross errors as amounted to a fraud, and they could not be referred to the chief engineer, as we have explained, or if he refused to correct them on final estimate, the plaintiff may recover the amount of such errors in this suit. But if plaintiff could have referred them to the chief engineer, and did not, he cannot recover.”</p> <p>“ 12th. There is no evidence in this cause of fraud, or such gross mistakes as will vitiate and destroy the estimates made in this case, or entitle plaintiff to recover in the action.”</p> <p>Answer: “ We answer that whether there was or was not such gross fraud, is for the jury. There is some evidence of it, and it is submitted to you under the instructions already given.”</p> <p>“ 14th. There is no evidence in the case of such gross mistake as would amount to a fraud, and thereby enable the plaintiff to escape the stipulations of his contract, by w'hich all'disputes arising thereunder, were to be submitted to and decided by the chief engineer, and, therefore, this action cannot be sustained, and.the verdict of the jury should be for the defendants.”</p> <p>Answer: “We answer this point that whether the plaintiff can maintain this suit depends upon the finding of the jury. We cannot take the facts from them, but unless the plaintiff made all reasonable efforts to get his claim decided by the engineer up till the bringing of this suit, he cannot recover; if he did and failed, he may.”</p> <p>There was a verdict for the plaintiff for $5075. The charge of the court and the answers to the above points were amongst the errors assigned.</p>

<p>1. Where fraud or duress has been practised in obtaining a wife’s acknowledgment to a deed, and the knowledge of it, or of such circumstances as would lead to inquiry, has been brought home to the grantee, it will avoid the acknowledgment.</p> <p>2. Less than actual duress will avoid the acknowledgment of a wife, if it be known to the party claiming through it or when he ought to have inquired for defences and did not, as in case of taking an assignment of a mortgage.</p> <p>3. The acknowledgment will be avoided if the wife made it under moral constraint; that is, by threats, persecution and harshness of her husband to force her to to set aside her own free will and comply unwillingly with his wishes.</p> <p>4. The acknowledgment of the wife must be taken out of the presence of th'e husband where he cannot see or hear any indication of unwillingness on her part to execute or acknowledge the instrument; otherwise she has no opportunity to escape the coercion.</p>

<p>Error to the Court of Common Pleas of Indiana county, in which this was an action on the ease by Catharine Henderson, the widow of Joseph A. Henderson, and John F. Henderson and others, children of said Joseph, against the Pennsylvania Railroad Company, for causing the death of said Joseph.</p> <p>The declaration alleged that, on the request of the company and in consideration that Henderson would engage to transport certain live-stock from Indiana to Philadelphia on their railroad, and to take a seat in their cars to Philadelphia for a reasonable reward, the company agreed to. convey him and his stock to Philadelphia, and to pass him safely from the cars on the Indiana branch to the cars on the main line, without putting him in any peril by the negligence or unskilfulness of the company or their servants ; but that the company did not take due care and diligence and skill in allowing him a safe and convenient way and sufficient time to get into the cars on the main line, but carelessly and negligently caused an engine to be so run whilst he was attempting to get into the cars as to throw him down and kill him.</p> <p>It appeared that Henderson, on the trip on which he was killed, shipped some live-stock from Indiana to Philadelphia and received a “ drover’s pass,” being a ticket given to the person in charge of stock to the same place where the stock goes, there being no charge for the ticket, and the stock being charged the same freight whether any one goes with it or not.</p> <p>The ticket is in this form:—</p> <p>“ Pennsylvania Railroad. Not Transferable. Good for three days only. Conductor of Passenger Car attached to eastern bound stock train, will pass the bearer, in charge of his stock, in cars No. from to 18 Agent.” On the back of ticket: Jfgg” “ The person accepting this free ticket assumes all risks of accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by its agents, or otherwise, for any injury to the person, or for any loss or injury to the personal property of the party using this ticket. Agent of the P. R. R. Co. will observe the following rules in issuing drovers’ passes: one pass to either 1 or 2 carloads of stock; two for not less than 4 car-loads; three for not less than 6 car-loads, and four for 10 car-loads or more. Passes in all cases to be dated when issued.” The stock was manifested on 21st July 1859, to Amos Thomas, and $115 prepaid.</p> <p>At the intersection of the Indiana Branch with the main line, there was a platform between the two tracks about six feet two inches wide, and passenger cars on the tracks so overlapped it, that cars being opposite to each other on each track would leave a space between them of but about two feet seven and a half inches.</p> <p>Henderson had come down with his stock to the intersection on the evening of the day he left Indiana. The stock-ear was attached to .a freight train shortly after its arrival at the junction, and Henderson waited at a public-house near, to take the passenger-car, which had not then arrived. This car was somewhat behind time; when it arrived the watchman of the company notified Henderson, who left the house and went on to the platform to get into the car, and whilst there for that purpose, and waiting till the train on which he was to go and which was moving slowly up, should stop, the fast line westward passed, struck him and killed him. -The facts are stated more in detail in same case, 7 Wright 449.</p> <p>The verdict was for the plaintiff for $3500.</p> <p>The specifications of error following show the rulings of the court below in the admission of evidence and in charging the jury:</p> <p>The court erred in charging the jury as follows:—</p> <p>1. “ It was about eleven o’clock at night, and the freight train to which the emigrant ear was attached was from one-fourth to one-half hour behind time. The delay cannot be, however, alleged as a cause of action, as it is not the one laid in the declaration; still it is a circumstance bearing upon the cause on the question of negligence.”</p> <p>2. “ The fact that they were behind time, however, is not laid in the declaration as the negligence complained of, but it may be considered as an element with others, as the probability is that if the freight train had been on time, a sufficient period would have elapsed to have enabled Henderson to enter the cars before the fast line came up, and thus entirely escaped danger.”</p> <p>3. “We therefore say to you, that if the agents of the company gave the necessary warnings and cautions which might with reasonable attention have been heard and seen by Henderson, he was bpund to hear them, and if he did not, he was careless of his own safety, and if injured or killed it was the result of his careless disregard of those usual warnings, and she cannot recover it.' * * * It is not whether he did know his danger or not. If he could have known it, with proper care, it is to be imputed to him that he did know, — whether the fact was so or not.”</p> <p>4. “ A point has been raised that the endorsement up'on the ticket operated as a release of this cause of action. We are not of that opinion. What the effect would have been if Henderson had been injureij, and himself brought suit for such injury, it is not necessary to decide. This suit is brought by the widow, and her right of action cannot be affected by any discharge or release of Henderson in his lifetime. This is her action, not his or his representatives’.”</p> <p>5. In submitting the question of negligence to the jury, as there was no evidence at all from which it could be inferred.</p> <p>6. In the answer to the defendant’s sixth point, which point is as follows: “ That if the railroad company had a safe and convenient station-house at the Blairsville intersection, it is the proper place where passengers waiting for the train should be, but if they leave such place of safety and attempt to reach the cars for the purpose of getting on while they are in motion, the company will not be responsible for any injury he may sustain in such attempt, and the plaintiff cannot recover in this action.”</p> <p>Answer: “ The sixth point, particularly the first part, as a general rule is correct and affirmed. But if the jury believe' this was at a late period of the night, and the station-house closed up, and if Henderson was at the house of Donnelly and informed by the watchman that he would notify him of the approach of the train, and he did so, and conducted him to the place where they were waiting for the freight train, then we think it would not be an act of negligence in Henderson not to be in the station-house. If, however, Henderson left a place of safety selected by the watchman, and left it to enter the train while moving, it would be an act of carelessness. With this modification, the point is answered in the affirmative.”</p> <p>7. In the answer to the defendant’s seventh point, which point is as follows: “ That Henderson having released the company from any responsibility for injuries he might sustain, the plaintiff cannot recover unless gross negligence is proved on the part of the defendant, and that there is no evidence of such negligence in this case.” Answer: “This point is answered in the negative. The endorsement on the ticket would not operate to release this action.”</p> <p>8. In the answer to the defendant’s ninth point, which point is as follows: “ That if the plaintiff is entitled to recover at all, it is on the ground of the pecuniary interest she would have in his life. That if Henderson was largely indebted at the time .of his death, the plaintiff would 'have no pecuniary interest in his life until his debts were paid, and the jury in estimating the pecuniary value of the life of plaintiff’s husband, must, if they can, fix on. a period in his life, when if he had lived he would have acquired property beyond his debts.” Answer: “ We cannot answer this point t'o the extent demanded. His wife and family had an interest to the extent of their support at least. This point is answered in the negative.”</p> <p>9. The court erred in receiving the evidence contained in plaintiff’s first offer, which is as follows: “ Plaintiff proposes to prove by witness that Mr. Potts, the agent of the company, on the morning after Henderson was killed, was there, and directed the telegraph operator to telegraph Thos. A. Scott, general superintendent of the road, the situation of the platform, and that he thought it ought to be removed, and the operator replied, ‘ Very well,’ and commenced on the apparatus, and that the platform was removed the next day.”</p> <p>10. The court erred in receiving the evidence as contained in plaintiff’s second proposition, which is as follows: “ Plaintiff proposes to ask the witness whether the attention of a passenger standing on the platform about to get on an approaching car would not necessarily be directed to the car he is about to enter.”</p> <p>11. The court erred in admitting the evidence as contained in the plaintiff’s third offer, which is as follows: “ Plaintiffs propose to ask witness from his knowledge of decedent’s age, habits, health and physical constitution, how long he would have been useful to his .family.”</p>

Error, to the 'Court of Oyer and Terminer of Cambria county. John B. Howser and Daniel Busser were indicted for the murder of Polly Paul: the prisoners were tried December 9th 1865, Judge Taylor presiding. December 16th they were convicted of murder in the first degree, and same day sentenced to he hanged. The deceased was an aged unmarried woman who resided generally alone: at the time of her death a young girl named Cassy Munday lived with her.

<p>This was an appeal from the decree of the Orphans’ Court of Fayette county, confirming the account of the executors of Levi Springer, deceased. The names of the parties do not appear on the paper-books.</p> <p>Levi Springer by his will directed as follows, viz.: “ I do hereby direct all the residue of my real estate lying in the state of Pennsylvania, Ohio and elsewhere, and not herein specifically devised, to be sold, and I do hereby appoint my executors trustees for that purpose, with power to sell and convey the same, at such time and in such portions, divisions and subdivisions, as they shall deem proper.</p> <p>“ I also direct my executors to dispose of all my personal estate, and to collect my debts, and the proceeds of such real estate as shall be sold, and all such other funds and stocks as I may own or may come to their hands, I order my said executors to hold in trust as a common fund for the benefit of all my grandchildren, and I bequeath the same to them, share and share alike, to be paid to them as they respectively shall arrive at full age.</p> <p>“ And I further provide and direct that my executors, or either of them, shall not be prevented from purchasing at any public sale or vendue made by them under this will, any real or personal property which may be sold by them at public auction or vendue, any law to the contrary notwithstanding.”</p> <p>Amongst other lands, he owned a tract called the “ Sugar Camp Tract,” for which he had paid $1090, and another called the “ Cool Spring Furnace Tract,” for which he paid $945.</p> <p>One of the executors became the purchaser at public sale of these tracts; the first for $410, and the other for $805.</p> <p>The testator left three daughters, all of them having children who are minors. One of the daughters was the wife atone of the executors. The executors filed an account, in which they charged themselves with the above sums as proceeds of the land sold.</p> <p>The guardians of the minor children, or some of them, filed, amongst others, the following exception to the account:—</p> <p>“ 9th. They have charged themselves with but' $1215, the proceeds of the sale of two tracts of mountain land, one of which said tracts is known as the Cool Spring Furnace. Land, containing four hundred acres, and the other is known as the Sugar Camp tract, containing one hundred and fifty acres., which tracts of land were sold by said accountants for a sum of money greatly below their real value, and which sales are now being contested by a bill in equity, already filed, to set aside the sales and cancel the deeds (if any have been made), on the ground that the said sales were fraudulently made and greatly under the value of the property.”</p> <p>The account with' exceptions was 'referred to an auditor, who heard much testimony, in which there was some evidence that the executors had said before the sale that the lands .should not be sold unless they should bring their value, or as much as the testator had paid for them at any rate: he made an extended report reviewing the testimony, and said :—</p> <p>“ In all the evidence adduced I have failed to find any, that could raise even a presumption that the executors had done or omitted to do any act in respect to the sale of the land of said deceased, by which any person has been injured. or advantage taken of them.” And concluded, “I am of the opinion that said tracts were' sold for less than their value; but at the same time I believe that the sale was fair and made in good faith, without fraud or connivance, and for the highest and best price which could be obtained for the land at the time, and there is therefore no cause for setting the sale aside.”</p> <p>To the report of the auditor the 3d exception was: “ the auditor erred in not charging the accountants with the amount Levi Springer, the testator, paid at sheriff’s sale for the Sugar Camp tract and the Cool Spring Furnace tract, to wit: Sugar Camp tract $1090, for the Cool Spring Furnace tract $945.”</p> <p>The Orphans’ Court (Stewart, P. J.) overruled the exceptions and confirmed the report.</p> <p>The appellants assigned for error the overruling of the 3d exception.</p>

<p>Error to the Court of Common Pleas of Armstrong county.</p> <p>In the court below there were two suits depending upon the same facts. One was at the suit of Matilda J. Linsenbigler against George A. Gourley, and the other at the suit of the same plaintiff against John M. Gourley; the record in the latter, on motion of the plaintiff’s attorney, was amended so as to stand “ George A. Gourley, Administrator, &c., of Benjamin F. Gourley, deceased, for use of M. J. Linsenbigler v. John M. Gourley.”</p> <p>The first case was on the following note:—</p> <p>$365.75. Rural Village, July 26th 1861.</p> <p>One day after date, I promise to pay to the order of B. F. Gourley, three hundred and sixty-five dollars and seventy-five cents, for services in store in full.</p> <p>(Signed) George A. Gourley.</p> <p>The other case was on this note:—</p> <p>One day after date, I promise to pay to B. F. Gourley, or order, one hundred and forty-four dollars and twenty-nine cents, for value received. Witness my hand and seal, July 27th 1861.</p> <p>John M. Gourley.</p> <p>Benjamin E. Gourley, the payee of these notes, was an unmarried man, who entered into the military service of the United States July 2Tth 1861. On that day he showed these notes to a friend, J. K. Patterson, and enclosed them with another small note and a five dollar bank note in an envelope, endorsed,</p> <p>“ Miss M. J. Linsenbigler, Pleasant Hill.</p> <p>“ In politeness of friend Patterson.”</p> <p>Patterson testified, “ he called in my store the day he was leaving and gave me these notes ; he came into my store ; some few in there ; he called me back into the wareroom, and showed me a note on George A. Gourley, one on John Gourley and one on a man in the pines; don’t recollect the name ; and he put a $5 bill and the notes in an envelope ; after he put them in he sealed it up and told me to give it to Tilda Linsenbigler, and said if he never came back he wanted her to get it, as he would rather she would get it than any other person; that he wanted her to have these notes, and would rather she would have them than any other person. He said to give it to her the first time I saw her, — the first time she would be in the village. I got the envelope on Saturday, and delivered it to her on the following Monday, sealed up just as I received it.”</p> <p>There was evidence that the plaintiff and the deceased were engaged to be married.</p> <p>On the 29th of July he wrote to plaintiff from Pittsburgh: “ I handed J. K. Patterson a few lines and the notes. Also, I told him the way of it, as I had to let him see me when I was fixing it up. He said he would say nothing about it. I told him not to. But if I do not get back I do not care who knows it, as I told him I would much rather you would get it than any person else.”</p> <p>On the 5th of August he wrote to her from Harrisburg: “ When you write, let me know if you got all I left you, and if Patterson 'gave you a separate note. I forgot to put it in with the rest. I suppose he will think me very liberal, as he saw me put the bill in with the note. I would not let him see it, but could not help it. The store was full of people at the time, and I had to go back to his warehouse, and he went along with me ; but I do not care, as I trust I was leaving all with a true friend ; and if I do not get back, if you can get all I will be satisfied.”</p> <p>On the 6th of September he wrote to her from Washington: “ But I thought it more my duty to spend a few moments in conversing to you for this may be the last time; but I hope not. But if so, what I gave to you, put in hands that will attend to it justly and honestly for you; for I want you to get all if I do not get back.”</p> <p>He died in the field, of disease, November 26th 1861. The suits were tried and resulted in verdicts for the plaintiff, but the judgments thereon were removed to the Supreme Court, and argued at the Western District in 1864, when they were reversed, the opinion being delivered by</p> <p>Bead, J. — The same error was committed in both these cases, in holding that the gifts of these promissory notes by Benjamin F. Gourley, the decedent, to the plaintiff below, were donationes mortis causd. They were delivered by a soldier to the plaintiff or for her when he wa's going to the front, but months before his death and when he was neither in his last illness nor in periculo mortis. He said if he never came back he wanted her to get them, as he would rather she should get them than any one else. The gift is therefore not sustainable as a donatio mortis causd, and as there was no consideration can it be sustained on any other ground ?</p> <p>The ease most resembling this is lie Patterson Mitchell v. Smith, 33 Law Ins. Ch. 597, decided by the Lords Justices on the. 9th June 1864. The payee of three promissory notes executed the following endorsement, preceded by the delivery of them to the endorsee: “ I bequeath — pay the within contents to Simon Smith or his order at my death.” There was a single witness to the payee’s signature. In the act of the delivery of the notes the payee expresséd an intention “ to be master of the notes as long as he lived.” It was held that the transaction constituted aAestamentary gift and was as such void, there being only one witness. In Pennsylvania it would have been valid. “ It had occurred to me at one time,” said Lord Justice Turner, “that the object of this form of endorsement might perhaps be, to enable the endorsee to hold the notes in trust, for the testator during his life and then for himself absolutely. But this construction would be inconsistent with the testator’s expressed intention to remain master of the notes as long as he lived. “ The gift in my opinion was testamentary, and being incomplete is invalid. The right to negotiate a promissory note does not pass unless the requisite endorsement and delivery have been gone through.”</p> <p>These do not, therefore, appear to be testamentary gifts, nothing that can be construed into a will appearing in any part of the evidence.</p> <p>Judgment reversed, and venire de novo awarded in both cases.</p> <p>On the 6th of November 1865, a re-argument was ordered by the Supreme Court in both eases.</p>

<p>1. A contract between the Commonwealth and a private person is ordinarily to be construed in the same manner as a like contract between natural persons, notwithstanding the remedy for its breach is not the same.</p> <p>2. The Act of May 5th 1841, authorizing the lease of the surplus water of the canals, shows an intent to retain to the Commonwealth absolute control of the canals and an unfettered right to deal with them at pleasure; and the lessees could claim no more for the loss of the water than suspension of the rent.</p> <p>3. The Act of May 16th 1857, for the sale of the public works, imposed on the purchasers no other duties to the lessees than those resting upon the Commonwealth at the time of the sale, and therefore, if the purchasers deemed it expedient to abandon the canal, there was no obligation on them to maintain any part of it in order to supply a lessee with water.</p>

<p>Error to the Court of Common Pleas of Butler county, in which this was a scire facias sur mortgage, by Alexander Scott against John M. Orr, with notice to J. E. Brown and Hugh Campbell, terre-tenants. The pleas were payment, set-off and an execution attachment, issued by one Bell, a creditor of plaintiff, in which Orr, the mortgagor, was garnishee. To the plea of the attachment, the plaintiff replied that the judgment on which it was issued had been assigned to the terre-tenants, and was now owned by them, and that plaintiffs were willing to credit it to the mortgage-debt.</p> <p>The.mortgage had been given by Orr to Scott to secure part of the purchase-money of a tract of land bought December 5th 1857, and was for $2143.75, payable in three annual instalments, of which two were still due, the last, July 1st 1860.</p> <p>The attachment mentioned in the plea was issued to December Term 1859, on a judgment recovered November 3d 1859. Answers were filed December 16th; a jft. fa. on the judgment was issued January 20th 1860, and Scott’s land condemned; three vend. ex. issued; two “ returned by order of attorney,” one stayed for error by order of the court, and finally, June 11th 1861, a stay for one year under Act of May 1861, and nothing further, done. About the time the attachment was issued, and. after the second instalment was due, Scott and Orr met, and notes were given by Orr to Scott amounting to $350. Huff, a witness of the defendant’s, testified that the notes were a settlement of the mortgage, and to save the debt from being attached; a witness testified that, Scott wanting money, and Orr being unable to pay him any, gave him notes to be negotiated, which were to be credited on the mortgage-debt when paid.</p> <p>Orr, in answer to interrogatories, said, that if a disputed line in the land bought by him from Scott were determined against him, he would owe Scott nothing; if otherwise] he would owe him $500 ; that he had no transactions with Scott at the service of the attachment; that he had in his possession no goods, &c., of Scott’s at that time, nor at any time since.</p> <p>After the giving of the notes, the land bound by the mortgage was sold by the sheriff on a judgment against Orr, and bought by Brown and Campbell. Orr was insolvent. The defence to the scire facias was by the terre-tenants. The plaintiff gave in evidence a deposition of Orr before an auditor appointed to distribute the proceeds of the sale of his land by the sheriff, in which he said that the notes were given to Scott for negotiation; that he had never paid any of them ; and that they were not to be credited on the mortgagé-debt till paid.</p> <p>The terre-tenants twice offered in evidence the answers of Orr to the interrogatories: first, to corroborate Huff, and as showing fraud between Scott and Orr to defraud Scott’s creditors ; second, to contradict Orr’s deposition and affect his credibility. The offer was rejected and an exception taken. The verdict was for the plaintiff for $1349.56, the judgment on which the attachment was issued being allowed as a set-off, or equitable defence.</p> <p>The errors assigned were the rejection of the defendant’s offers of evidence, and also that the court (MeGuffin, P. J.) erred—</p> <p>1. In the general charge, in answer to plaintiff’s request, saying : “ In reference to the attachment of Bell v. Orr, as a question of law the writ and case have been abandoned, and cannot affect the question of interest.</p> <p>“ We therefore say to you that from the lapse of time since the filing of the answer, and no evidence before us accounting in any way for the delay in the non-prosecution of the case, there is an abandonment thereof at law, and therefore you will not refuse to allow interest upon the residue you may find unpaid upon the mortgage, except for the space of time intervening from the issuing of the writ of attachment until the issuing of the fi. fa. in evidence in the further prosecution by the plaintiff in the attachment.”</p> <p>2. In answer to defendant’s first point, “ That if the jury should find from the testimony that Orr gave negotiable notes to the full amount of the mortgage, and Scott received them for the purpose of securing the proceeds of the mortgage from the creditors of Scott, such an arrangement entered into for such a purpose would, in law, be a satisfaction and payment of the mortgage.”</p> <p>“We answer that in this case the terre-tenants, Brown and Campbell, so far as we have any evidence before us, are not creditors of Orr in the light in which creditors and debtors are viewed by the law, but are purchasers at sheriff’s sale of the land covered by the mortgage.</p> <p>“ The giving of the notes (in evidence), if not taken at the time as absolute payment of the mortgage, but given merely to raise money on, and when paid then to be a credit, would not be a fraud upon them and thereby work a satisfaction of the mortgage, notwithstanding they may have been given to defraud creditors generally.”</p> <p>3. In answer to defendant’s second point, “That if the jury should find that negotiable notes were given by Orr and accepted by Scott for the amount of the mortgage, the legal presumption is that said notes were given and accepted in satisfaction and payment of the mortgage.”</p> <p>“"We instruct you that in the absence of proof to the satisfaction of the jury that the notes were taken as a satisfaction, the mere fact that they were negotiable notes will not raise the presumption in law that they were taken as satisfaction of the debt due on the mortgage.”</p> <p>4. In answer to defendant’s third point, “ That if negotiable notes were given to the amount of the mortgage by Orr to Scott, and these endorsed to third parties who accepted them because they were secured by said mortgage, and these notes are still unpaid and held by such endorsees, the plaintiff cannot maintain this suit.”</p> <p>“We say to you, unless you are satisfied that notes were received as absolute payment by Scott, the fact that they may be still out in the hands of third persons unpaid by Orr, will not prevent the plaintiff from recovering in this suit.</p> <p>“ If they are still unpaid in the hands of third parties, and if those persons took the notes believing they were secured by the mortgage, the court, for the holders’ protection, would control the execution in the collection of the amount recovered, and would require the cancellation or a return of them for the protection of Orr, yet their being unpaid is no defence to the terre-tenants to the amount still due on the mortgage, if any such should be found by you.”</p> <p>5. In answer to defendant’s fourth point, “ That the attachment in execution, Bell v. John M. Orr, garnishee of Alexander Scott, is still undisposed of and operates as a bar to this suit, and the plaintiff cannot recover.”</p> <p>“ Having received the proceedings upon the execution-attachment in evidence, and the plaintiff having agreed to allow as credit upon the mortgage the amount of the debt claimed, interest and costs thereon, we then instruct you the attachment is no bar whatever, and the plaintiff has the right to proceed and collect the balance which the jury may find due him upon the mortgage.”</p> <p>6. In answer to defendant’s fifth point, “That the service of the attachment, No. 56 December Term 1856, stops interest from the service of the attachment on the garnishee, until said attachment is ended.”</p> <p>“We instruct you that from service of the writ of attachment in the case of Bell v. Orr referred to in the point, the interest will cease upon so much of the mortgage as the judgment, interest and costs thereon amount to, and no more ; and interest will be recoverable upon the residue of the mortgage unpaid which the jury may find after allowing all credits proved and admitted to have been made, unless the attachment had been abandoned by the plaintiff.”</p> <p>7. In answer to defendant’s sixth point, “ That if the negotiable notes given by Orr to Scott, amounting to $850, have been regularly negotiated and are now outstanding in the hands of third and innocent holders, the plaintiff must return them or account to the defendant for them before he can proceed on his mortgage.”</p> <p>- “We answer that we have substantially answered it in our answer to the third point, to which we refer you.”</p>

<p>1. A sheriff having in hand distinct executions against Lake and Corley, levied on lumber as the property of Lake and delivered it to the plaintiff in the execution against Lake, taking from him a bond reciting that execution and levy of the goods as the property of Lake, conditioned for the return of the lumber on a day named; the property was afterwards ascertained to be Corley’s. Held, that the obligors were liable for the forthcoming of the lumber to meet the exigencies of the executions against Corley.</p> <p>2. The recital in the obligation was merely explanatory of the sheriff’s possession of the property, and did not restrain the liability of the obligors.</p> <p>3. On the execution against Corley, the sheriff returned that he had levied on the lumber and had sold it under a prior execution; the jury found that this return was fraudulently procured by the obligor. Held, that this did not estop the sheriff and his assignees in a suit on the bond from showing the' facts, and that the return Avas not correct.</p>

<p>Error to the Court of Common Pleas of Crawford county, in which this was a feigned issue to try the validity of a judgment, Isaac Blystone against Frederick A. Blystone, obtained by confession, February 17th 1859, for $1200.</p> <p>Frederick was the son of Isaac, and had been in partnership with his brother, as C. H. Blystone & Co. In 1858 Isaac bought out Frederick’s interest in the firm, and agreed to pay the debts of the firm, or of Frederick. Isaac not being able to pay the debts as they became due, and fearful of being pressed, induced Frederick to confess the above judgment to him, there being nothing due from Frederick to Isaac. On this judgment the property of the old firm was sold by the sheriff, and bought by Isaac for $428.51. Frederick, on March 13th 1863, recovered a judgment against Isaac for $689.64, and under a rule to show cause why the balance of Isaac’s $1200 judgment should not be set off against Frederick’s judgment against him, a feigned issue, in which Isaac was made plaintiff and Frederick 'defendant, was directed to try the validity of Isaac’s $1200 judgment.</p> <p>Under the charge of the court (S. P. Johnson, P. J.) there was ’ a verdict for the defendant.</p> <p>The errors assigned were that the court erred — 1. In not charging as requested in plaintiff’s point, to wit: “ The court is requested to charge the jury, that if they find the judgment was fraudulent, and entered into by plaintiff and defendant to hinder and delay the creditors of defendant in the collection of claims against him, that it is binding upon him in law and the plaintiff is entitled to recover.”</p> <p>Answer: “Not so. Fraudulent contracts and arrangements, so far as executed, will not be disturbed, but the law will not lend its aid to enforce a fraudulent contract on the ground that parties are equally guilty, and the defendant has no. right to complain.”</p> <p>2. In charging, “ if the consideration and object was, as is alleged, to hinder and postpone the creditors of C. H. Blystone & Co., of which firm he had been a member, from collecting their debts out of his individual property, it was never a legally valid judgment for any purpose.”</p> <p>3. “ But so far as it was not executed or collected, the law will not lend its aid for its enforcement.”</p> <p>4. “ It is not a valid judgment and cannot be collected.”</p>

<p>Error to the Court of Common Pleas of Jefferson county, -in which this Was an ejectment by Frederick Maul and Mary E. Maul his wife, against John Rider and Philip Dietrich, for a “ lot of land” in Winslow township.</p> <p>The writ issued July 24th 1860.</p> <p>The land had belonged to George Latimer, now deceased, and on the 22d of March 1837 his executors, by their agent, Gaskell, agreed to sell three hundred acres to John Rider and Martin Jacobs for $600, payable, $120 in hand, and the remainder in four equal annual payments. The hand-money, $120, was paid the same day, and various other sums afterwards, up to June 9th 1849, part by one, and part by the other, making the whole amount then paid $380. Jacobs died August 1st 1849, no deed having been made for the land. He left one child, Mary, the plaintiff, who arrived at age December 6th 1855, and was married in 1856 to' the other plaintiff. There was evidence that upon payment of the purchase-money the purchasers were to have separate deeds, Rider for the west end, and Jacobs for the east end, and there was also evidence of a parol partition. A line was run by a surveyor in 1838 ; Rider taking possession of the west end by clearing, sowing grain and putting up buildings. Jacobs did some clearing also on the east end. Jacobs lived nearly all the time after- the contract till his death, away from the land. The land was assessed as unseated in the name of Jacobs and Rider jointly until 1840 inclusive. In 1841 it was assessed one hundred and fifty acres in name of Jacobs, and one hundred and fifty acres in name of Rider; from that time to 1846 all in the name of Rider; in 1848 one hundred and fifty acres in the name of Rider, and from that time till 1854 all in the name of Rider; during most of the time half was returned as seated and half as unseated.</p> <p>There was evidence that Jacobs furnished money to pay the taxes. Prior to December 14th 1840, the whole land was sold for taxes to John Philliber, and on that day a treasurer’s deed was made to him. This he assigned to Rider, May 9th 1842, for $15.40. The article between Latimer and Rider and Jacobs was held by Jacobs until some time after the treasurer’s sale, and not a great while before his death Rider called on Jacobs to get it, that he might borrow money on the land, and Jacobs gave it to him. After this Rider called several times on Gaskell to buy the land, saying that Jacobs’ part had been sold for taxes, and was lost to Jacobs ; that he, Rider, had bought the title from Philliber. The original contract was finally given up to Gaskell, and a new one, dated June 9th 1849, entered into with Rider alone, for the whole three hundred acres, for $317. A deed was made to Rider, January 19th 1853, for two hundred acres, and a deed to Philip Dietrich for one hundred acres, át the request of Rider.</p> <p>The case was tried and resulted in a verdict for the plaintiffs for an undivided half part of the land. The judgment on that verdict was reversed: see Rider v. Maul, 10 Wright 398. On the next trial, before Campbell, P. J., the verdict was for the defendant.</p> <p>The plaintiffs assigned for error that the court erred:—</p> <p>1. In answer to the plaintiff’s first point, in not charging, “ that</p> <p>to make a valid parol partition, it is necessary that the contract be proved ; that the land was clearly designated ; that open, notorious and exclusive possession was taken and maintained under and in performance of the contract; and that the improvements, which constitute the consideration, were made on the faith of such partition; and, in the absence of these requisites, the alleged parol partition would be within the Statutes of Frauds and Perjuries, and would not avail the defendant in this action.” And, leaving to the jury as a fact to be found by them, “ that the plaintiff’s father and defendant, as early as 1837 or 1838, had a division line run between them,” when there was no evidence such line was run prior to March or April 1838. “ Under all the evidence in this case, the jury may find that the parol partition was so far executed, that it would be^ against equity and good conscience to treat it as a nullity. We therefore instruct you, that if you believe the evidence on part of defendant, the Statute of Frauds and Perjuries is not a bar to defendants holding by virtue of the parol partition.” '</p> <p>2. In answering in the negative the plaintiffs’ second point, which is, “ that the 6th section of the Act of 22d April 1856 does not apply to this case. That this action is not brought to enforce a trust arising out of a contract between Jacobs and Rider, nor to enforce equity of redemption after re-entry made for any condition broken; nor to enforce any implied or resulting trust founded upon contract, to which classes of cases alone that section applies ; and that it will not, therefore, avail the defendant anything.”</p> <p>3. In not charging in answer to plaintiff’s fourth point, “that if Rider acted fraudulently a trust would arise by operation of law to Jacobs; and unless Jacobs had notice of such trust in his lifetime, or unless Mrs. Maul, his heir, had actual notice before the 5th of.October 1856, at which time she was married, the statute would not bar her right, and so far as it is concerned the plaintiffs are entitled to recover.” In charging, “ if Rider undertook to act as the agent of Jacobs, and fraudulently procured the title in his own name, it would enure to the benefit of Jacobs, and Rider would be a trustee of Jacobs by reason of fraud ; ’and in that case the Statute'pf Limitations would begin to run only from the discovery of the fraufi.” “ Or where, by reasonable diligence, Jacobs might have discovered the same.”</p> <p>4. In not charging in answer to plaintiff’s fifth point, “ that to constitute an ouster, there must have been by the defendant some unequivocal, open act, entirely inconsistent with the right of his co-tenant; but there is no evidence of any such act before the 9th day of May 1842, and as this action was brought on the 24th of July 1860, even if the procurement by the defendant of the trustee’s deed is to be regarded in the light of an ouster, and the defendant held exclusive and adverse possession until the time this action commenced, twenty-one years would not have elapsed, and the defendant would not acquire any title by the Statute of Limitations.” In charging, “ that if there was a parol partition made between Jacobs and Rider twenty-one years before the commencement of this suit, and the latter has since held the continued, adverse, notorious and exclusive possession of the west end of the tract, he would have a perfect title by the Statute of Limitations as to that. Was there any such executed parol partition, and was there such possession in defendant ? The facts are for the jury:” — when there was no evidence of an ouster before the 9th of May 1842, and when the sufficiency of the evidence of a parol partition was for the court and not for the jury.</p> <p>5. In not charging in answer to plaintiff’s sixth point, “ that if the jury believe from the evidence of the case, that the defendant worked on the land in 18.39 and 1840, and that the land for three years was assessed 'as a whole in the name of Rider and Jacobs, and that with the knowledge or at the instance of Rider, and that Rider paid the taxes on such assessments, and that during that time Jacobs did not reside or work on the land, then Rider would be estopped from setting up any alleged parol division in March 1838 ; or at least it would be strong evidence, even though a partition line was run, that no actual partition had been made between the defendant and Jacobs; and charging, “ that the doctrine of estoppel would not apply upon the facts alleged in this point. And the facts are for the jury.”</p> <p>6. In not charging in answer to the plaintiff’s seventh point. “ that there is no evidence whatever in this case, though a division line was run, except that of Mr. Gaskell, who testified that sepárate deeds were to be made on the payment of each one’s share, and that Jacob was to have the west end — that the parties agreed upon which part either was to have ; and that, without some such agreement, the mere fact of Rider moving on and improving the west part in the absence of Jacob, who, if the testimony is believed, then lived in Allegheny county, and resided there till his death; and- in the absence of any evidence of his knowledge of the defendant’s location, or improvements on the land, would constitute no .evidence of a partition of the land.” In saying, “ we leave all the facts in this case to you, to say whether there was a parol partition made between the parties at the time or not,” when it was the duty of the court to charge that the facts were not sufficient to constitute a valid parol contract. “The jury must.be satisfied that there was an actual division made, that adverse exclusive possession was taken by each in pursuance thereofwhen there was no evidence that possession was taken by either in pursuance of any division line. “ The absence of Jacobs would not affect the rights of Rider, if the division, followed by possession in pursuance thereof, was actually made.”</p> <p>7. In not charging in answer to the plaintiff’s eighth point, “ that at the time James Winslow ran the division line, the parties had not such an interest in the land as w'as susceptible of partition, and no such interest was acquired during the lifetime of Jacobs. There was, therefore, no valid partition made, and the plaintiffs are entitled to recover the undivided half of the land described in the writ.” In charging, “ if Jacobs and Rider had a contract with the attorney in fact of the owner, or if, in contemplation of a purchase, a survey was made, and the land divided between the purchasers, and the purchase was afterwards made in writing, and if the parties afterwards consummated the division by agreement, followed by possession in severalty, and made improvements, as we have stated, the partition might be good. How are the facts ? They are for you.”</p>

<p>Error to the District Court of Allegheny county, where this was an execution-attachment by E. and W. M. Eaber & Co. against Adams, Macklin & Co., in which Alexander King and Michael McCullough were garnishees.</p> <p>The plaintiffs had obtained judgment against the defendants March 14th 1859, and the attachment was served September 23d 1862. The garnishees pleaded nulla, Iona.</p> <p>There were nine other _ attachments issued and served at the same time with this.</p> <p>The defendants manufactured and sold glassware on Ross street, in Pittsburgh, having a lease of the premises where they conducted their business. They were largely indebted to a number of creditors, amongst others to King and McCullough, on distinct debts ; they had not been connected with each other in business.</p> <p>Being unable to meet their liabilities, on the 15th of October 1857 they confessed a judgment to King for $2000, and to McCullough for $2000. Executions were issued on both the next day, going into the sheriff's hands at the same time. The entire property of the defendants was sold under these executions on the 22d of October to King and McCullough for $2025.78. King and McCullough continued the business at the same place in the name of “ Adams, Macklin & Co., Agents.”</p> <p>The establishment was afterwards removed to Birmingham, and the lease on Ross street, which had been extended, was sold by the garnishee.</p> <p>The creditors of the defendants alleged that at the time the judgments were confessed, the understanding was that King and McCullough should buy the property of the defendants, and after satisfying'their own claims should deliver it to the defendants; that at the sale other creditors refrained from bidding, understanding this to be the arrangement; that in consequence, the property sold very much below its value ; that the amount of the judgments confessed covered all the liabilities of the defendants to King and McCullough, and that they had been fully paid.</p> <p>King andMcOullough denied these allegations, and asserted that there was no such arrangement; that they bought for themselves ; that the defendants were indebted to them much beyond the amount of the judgments. There was evidence on both classes of allegations.</p> <p>On the trial all the other attachments were given in evidence.</p> <p>When the jury were retiring they were directed by the court, if they should not agree on their verdict so as to bring it in that evening, that they should seal it up and bring it into court in the morning. In the morning eleven jurors only were present with a sealed verdict, and the foreman informed the court that the twelfth juror was sick. The court asked the counsel of the parties, if they would consent that the eleven jurors should render the verdict, which was assented to by the plaintiff’s counsel, but declined by the garnishees. The court, having, on further inquiry and by certificate of a physician, ascertained that the juror could not leave his room for some days, and the garnishees’ counsel still declining to assent to the eleven jurors rendering the verdict, adjourned to meet forthwith at the house of the sick juror, and all, the jurors, the plaintiffs and garnishees, with their counsel, being present, opened the court, the jury regularly rendered their verdict, being polled by garnishees’ counsel, the court then directed it to be recorded, and adjourned to meet forthwith at the court-house, when the verdict was publicly announced by the clerk in the presence of the eleven jurors, the parties and their counsel.</p> <p>The jury found for the plaintiff, and that there was in the hands of the garnishees liable to attachment, $16,200.</p> <p>There were á number of exceptions taken by the garnishees to the rulings of the court (Williams, A. J.), which appear by the assignment of errors.</p> <p>The court erred:—</p> <p>1. In admitting John Best as a witness, he being one of the attaching-creditors.</p> <p>2. In allowing witness to testify, “ that he attended the sheriff’s sale of Adams, Maeklin & Co., at the suit of the defendants, for the purpose of bidding on the property of Adams, Maeklin & Co., advertised for sale, and that King and McCullough, and Adams, Maeklin & Co., were there, and that he was willing to pay $5000 for the leasehold, but was informed by the parties that the property was being bid in for the benefit of Adams, Macklin & Co., and that he was thus prevented from bidding.</p> <p>3. In allowing Jenkin Jones, a witness, to read to the jury a bill of items of the valuation of the articles sold at sheriff’s sale. The witness had stated on his examination in chief, that in his judgment the property was'worth $20,000; and on cross-examination, that he had a bill of items showing the value of the articles.</p> <p>4. In allowing Thomas Atterbury to prove, that the judgments of King and McCullough were fully paid in 1859 — not being the best evidence; and,</p> <p>5. To prove the value of the buildings in 1859 after the sheriff’s sale.</p> <p>6 and 7. In allowing Swartz, a witness, to testify, that B. A. Fahnestock & Co. had attached goods of Adams, Macklin & Co., in Baltimore, after the sheriff’s sale ; and that McCullough offered to pay them fifty cents on the dollar to withdraw the attachment.</p> <p>8. In not allowing the garnishees to give in evidence the record of an issue under the Sheriff’s Interpleader Act, between King and McCullough and Orrin Newton, to try whether the property now in dispute, which had been levied on under an execution of Newton against Adams, Macklin & Co., belonged to King and McCullough: the verdict and judgment in that case having been in favour of King and McCullough.</p> <p>9. In refusing to strike out the evidence of Best and Owens, attaching-creditors of Adams, Macklin & Co., whose attachments were served at the same time with the attachment in this case.</p> <p>10. In affirming the plaintiff’s first point, “ that if the jury believe, from the evidence, that the judgments given to the garnishees in this case were given by Adams, Macklin & Co. on the understanding and agreement that the property was to be bought by King and McCullough, at the sheriff’s sale, and that when the said judgments were paid to the said King and McCullough, the property ivas to become that of said Adams, Macklin & Co.; and if the said judgments were paid in the year 1859, then the property became that of Adams, Macklin & Co., and the verdict should be for the plaintiffs.”</p> <p>11. In affirming plaintiffs’ second point: “ If the jury believe from the evidence, that bidders at the sheriff’s sale were prevented from bidding, by collusion between Adams, Macklin & Co. and King and McCullough, and by this means King and McCullough became the owners of all the property of Adams, Macklin & Co., then the property did not pass, and is bound by the execution-attachment in this case.”</p> <p>12. In their answer to garnishees’ first point: viz., “ That there is no such clear and convincing testimony in this case, of a contract, as will justify the jury in finding that there was one, and thereby divesting the legal title of King and McCullough to the property in question.” “ The court decline to charge as matter of law, as requested on this point, and submit the question as matter of fact to the jury.”</p> <p>18. In their answer to garnishees’ second point: viz., “ If the plaintiffs go on the ground of a contract, such as they allege, they must prove that the debts of Alexander King and Michael McCullough, due at the time the judgments were given, have been paid ; and that they have been relieved from the liabilities which they were under at that time for Adams, Macldin & Co.; and they must also prove that the debts and liabilities contracted by King and McCullough, since the sheriff’s sale, have been satisfied, otherwise they cannot recover. They cannot take the property from King and McCullough, and leave them exposed to the debts and liabilities of the concern. And there is no testimony in this case that will justify the jury in finding that the said debts and liabilities have been satisfied.” “The first part of this point is affirmed. The last part, viz., the concluding sentence, is declined, and submitted to the jury as a question of fact.”</p> <p>14. In their answer to garnishees’ third point: viz., “There is no testimony in this case that will justify the jury in finding that the sheriff’s sale was fraudulent, as against the creditors of Adams, Macklin & Co.” “ The court decline to charge, as matter of law, as requested in this point, but submit the question to the jury.”</p> <p>15. In their answer to garnishees’ fourth point: viz., “the sheriff’s sale vested in King and McCullough a good, legal title to the property in question; and nothing but clear, precise and indubitable evidence will authorize a court and jury to divest them of it, either on the ground of fraud or contract. There is no such evidence in this case, as would induce a chancellor to divest them of it, and consequently none that- the court can leave to the jury.” “ The court decline to charge as requested in this point, as matter of law.”</p> <p>16. The court erred in their proceeding in taking the verdict of the jury.</p>

<p>1. Judgment-creditors of an insolvent corporation, by tbeir bill in equity sought to have funds belonging to the corporation, which were in the hands of natural persons who were made co-defendants with the corporation, applied to the 'payment of their judgments; there was no averment in the bill, that executions had been issued on the judgments and had proved fruitless. Held, that the bill was fatally defective.</p> <p>2. Such averment is necessary to show that the complainant is remediless at law.</p> <p>3. The Act of June 16th 1836, relating to executions, makes provision for obtaining satisfaction of judgments against corporations which, by virtue of the Act of March 21st 1806, is exclusive of all others, and relief cannot be had in this state by means of a bill in equity.</p> <p>4. The sequestrator appointed under the Act of 1836 may, by using the name of the corporation, avoid a fraudulent grant, and is armed with all the orders and decrees that a court of chancery can enforce.</p>

<p>1. A breach of a covenant, in a policy, not to insure beyond two-thirds iof the estimated value, is a forfeiture of. the policy.</p> <p>2. Where other policies, which are alleged to create the over-insurance, are '•void at the time of the loss, they are no obstacle to a recovery on the policy on which the claim is made; but if voidable only for some breach of condition for which the insurers might avoid them, but which they had waived, the over-insurance exists.</p> <p>3. The question of identity of the property, where the description is different in two policies, is for the jury; where there is no dispute as to identity, but the question as to the terms of the different policies is the same, this, being a subject of comparison between writings, is for the court.</p> <p>4. An agent of an insurance company, whose duty is to take surveys, receive applications for insurance, examine the circumstances of a loss, approve assignments and receive assessments, is not authorized to accept notice of over-insurance or waive its consequences.</p> <p>5. A person insured in a mutual insurance company is a member of it, and is bound to become informed of its rules and regulations.</p>

<p>Writ of error and certiorari to the Court of Common Pleas of Philadelphia.</p> <p>This was a proceeding, under the Act of December 14th 1863, to recover possession of leased premises.</p> <p>Julie Levin, the defendant in error, leased the premises on the 20th of August to Elizabeth Haines, the plaintiff in error, for one year, and on the 19th of May 1865, the landlady notified her tenant to remove at’the end of the year. The tenant having refused to remove, proceedings were commenced by Mrs. Levin on the 30th of August 1865 to recover possession. She recovered judgment before the alderman on September 15th. The tenant removed the proceedings by certiorari to the Court of Common Pleas, and they were affirmed.</p> <p>A writ of error was taken to remove the judgment of the Court of Common Pleas ; that court afterwards, on a rule to show cause, awarded a writ of possession. A certiorari was then issued from the Supreme Court, at the instance of the tenant.</p> <p>The reporter has received no paper-book of the plaintiff in error. The statement of the case is made from the paper-book of defendant in error and the opinion of this court.</p>

<p>1. Haars gave a mortgage to Fritz, who afterwards took a lease of the mortgaged premises. The premises were sold after the death of Haars, and Fritz continued to occupy as tenant under the subsequent owners. In a scire facias on the mortgage by Fritz against the executor of Haars, the rents due by Fritz to the subsequent owners were not payment on the mortgage-debt, nor could they be used as set-off.</p> <p>2. The rent due to the subsequent owners accrued under a different right from the mortgage, and was not a perception of profits under it; in the scire facias it was res inter alios acta.</p>

<p>1. The general rule is that apportionment is not to he made of rents, dividends, annuities or other periodical payments, becoming due at fixed intervals, but only of sums accruing de die in diem.</p> <p>2. Dower, and sums for the maintenance of a wife or child, are exceptions. An annuity in lieu of dower will last as long as dower would have lasted.</p>

<p>Error to the Court of Common Fleas of Philadelphia, where this was an amicable action of covenant between Joseph Kinike, plaintiff, and Ann W. Mather, Catharine M. Mather and Emily R. Mather, in which the following case was stated:—</p> <p>The action (covenant) is on two ground-rent deeds, dated October 12th 1773, conveying to Seymour Hart two lots of ground therein described, and reserving out of each of said lots a ground-rent in the following words: “ Yielding and paying therefor unto the said grantor, his heirs and assigns, the yearly rent or sum of twenty-one Spanish coined fine silver pieces of eight and one-third part of a piece of eight, each piece of eight weighing seventeen pennyweights and six grains, or so much lawful money of the province of Pennsylvania as shall be sufficient from time to time to purchase or procure twenty-one such pieces of eight and one-third part of a piece of eight, on the 12th day of October yearly .for ever.”</p> <p>And containing covenants on the part of the said grantee, his heirs and assigns, that he and they shall and will from time to time, and at.all times thereafter, pay or cause to be paid to the said grantor, his heirs and assigns, “ the aforesaid yearly rent or sum of twenty-one Spanish coined fine silver pieces of eight and one-third part of a piece of eight, each piece of eight weighing seventeen pennyweights and six grains, or so much lawful money of the said province of Pennsylvania as shall be sufficient to pui-chase or procure twenty-one such pieces of eight and one-third part of a piece of eight, hereby reserved on the 12th day of October yearly for ever, as the same shall grow due and payable.”</p> <p>Prior to the 12th of October, 1868, the title to the said rents became vested in the plaintiff, and the title to the lots subject to the said ground-rents in the defendants. On the 12th of October 1863, one year’s rent became due on each of said lots under said deeds. The defendants tendered and have paid into court, under plea of tender, the sum' of $>42.67 in the legal tender notes of the United States of America, authorized by the Acts of Congress of July 11th, a. d. 1862, and March 3d, A. d. 1863, as payment of said ground-rents so accrued. Plaintiffs refused to accept the same.</p> <p>The coin mentioned in said ground-rent deeds was worth, or could have been purchased on the said 12th day of October, A. n. 1863, at the rate of 142J cents in legal tender notes aforesaid, for each piece of eight, such as are mentioned in said deeds. The highest price which such coin has since reached in the said legal tender notes was July 11th 1864, when it was worth 290 cents per piece of eight, and the same is now worth 240 cents per piece of eight, or thereabouts.</p> <p>If the court should be of opinion that the money so tendered was sufficient satisfaction of the rents so due October 12th 1862, then judgment to be entered for defendants; if otherwise, judgment for plaintiff for such amount as he may be entitled to under the facts herein stated.</p> <p>The Court of Common Pleas held that the covenant was not satisfied by the tender of the notes ; that the resérvation was of a particular kind of coin, with the alternative of its value in lawful money, and that the ground landlord'was entitled either to the particular kind of coin, or its real value in lawful money.</p> <p>That the measure of damages was the value of the coin at the time the rent fell due, and that the plaintiff could not recover more on the ground that the description of coin has since been worth more.</p> <p>The judgment of the court was entered for the value of the particular coin on October 12th 1863, with interest to date of judgment.</p>

• Error to the District Court of Philadelphia, in which this was an action on the case for negligence by John Power against Henry Killion. Power, in 1864, occupied the first story of a storehouse in Water street; Killion occupied the stories above him.

<p>Appeal from the Court of Common Pleas of Chester county, in the matter of the assigned estate of Andrew.Boyer. Eliza Hughes, administratrix, &c., of Eneas Hughes and William Buchanan, judgment-creditors of Boyer,. were appellants, and Benjamin Jones and others, general creditors of Boyer, wrere appellees.</p> <p>Boyer was the owner of two tracts of land in Chester county.</p> <p>On the 15th of February 1862 judgments were .entered against Boyer in favour of Buchanan and Hughes respectively, on bonds and warrants of attorney; the first dated March 5th 1861, conditioned to pay $2400, and the other dated April 1st 1861, conditioned to pay $1600. The hour at which they were entered did not appear.</p> <p>On the evening of February 14th 1862, Boyer executed a deed of assignment for the benefit of his creditors, and on the next day, February 15th, between ten o’clock A. M. and one o’clock p. M., in company with the assignee, placed the deed in the recorder’s office for record, Boyer having, until that time, kept it in his possession and control. The auditor found that this was the time of its delivery.</p> <p>The question in the case arose on the distribution of the balance in the hands of the assignee, and was whether the above-named judgment-creditors should be first paid, or whether the funds should be distributed amongst all the creditors pro rata.</p> <p>The auditor, R. E. Monaghan, Esq., after finding the facts, further reported:—</p> <p>“ Having thus fixed the date of the delivery of the deed, it becomes important to determine the effect of entering the Buchanan and Hughes judgments, on the same day with the deed. The evidence does not show what hour of the day these judgments were entered, hut the counsel argued that they became liens on the land of the grantor from the first hour of the day. Our Supreme Court has decided that the rule of the common law, which rejects fractions of a day in determining the priority of liens, is restricted to judgments, and in a case similar, to this the court say it would he impossible to put a judgment and a conveyance on a footing of equality, not only because it would be impracticable to determine the relative .proportions coming to each, but because they are inconsistent and irreconcilable. “ The one,” says Gibson, O. J., “ is a security which encumbers the property in exclusion of everything subsequent to it; the other, a conveyance excluding everything to which it is anterior; and they are, therefore, incapable of standing together. To affect land in the hands of a purchaser a judgment must have been not merely simultaneous with, but anterior to the conveyance; and, as an indispensable measure of justice, the precise time at which the judgment was entered must be shown by less than record proof.” “ The argument,” says the learned judge, “ that a judgment wdiose date, in contemplation of law, covers the whole day, is necessarily anterior to a conveyance at an intermediate point of the same day, is too subtle to be solid;” and in concluding his argument the chief justice says, “ When judgments hear the same date they must necessarily come in together, but between a judgment and a conveyance, actual priority must be shown like any other fact:” Mechanics’ Bank v. Gorman, 8 W. & S. 304.</p> <p>a In the more recent case of Claason’s Appeal, found in 10 Harris 359, the judge delivering the opinion of the court refers to the case of Mechanics’ Bank v. Gorman as the rule, and reiterates the doctrine that, in a contest between a judgment and a conveyance, fractions of a day are admitted, and that the first in order shall be first in right.</p> <p>“ The two judgments before the auditor are claimed to he superior to the other creditors of Andrew Boyer, because they are preferred by reason of being liens on his lands, and are liens on his lands because of their priority to the delivery of the deed of assignment. But this priority must not be presumed; its actuality must be shown like any other fact; it must be shown by those who make the claim, not by those who contest it. The precise time at which the judgments were entered must be shown, by less than record proof, to have been anterior to the conveyance. This has not been shown. The auditor is therefore of opinion that in law these judgments are not entitled to be preferred in the distribution, but must participate as equals with the other creditors.</p> <p>“ In equity their claim is no better. By the deed of assignment the assignor declares his intention to make ‘ a just distribution’ of his estate and effects ‘among his creditors,’ lpro rata, according to 'the amount of their respective demands, without preference as between individuals.’ This was his declaration on the day before the deed was delivered or the bonds were entered. Equity is equality; and a learned judge has well said that the fundamental principle of equity abhors inequality.”</p> <p>Upon exceptions, the Court of Common P.Ieas, Butler, P. J., confirmed the auditor’s report, delivering the following opinion :—</p> <p>“ Were the judgments against Boyer liens on the land ?</p> <p>“ The conveyance of the land and the entry of the judgment took place on the same day. The deed was executed the day before, but was not delivered until the next day.</p> <p>“ When two judgments are entered on the same day, neither has ¡priority over the other; both are regarded as taking effect from the first moment of the day; where a judgment and mortgage are entered on the same day, no inquiry, it would seem, will be made in regard to the time of entry, but the two liens will take together. Where, however, a judgment is entered, and a conveyance made by the obligor on the same day, the rule is otherwise.</p> <p>“ They cannot share the property; the one must take to the exclusion of the other; and it becomes necessary, therefore, to inquire into the hour when the entry was made,- and the conveyance took place.</p> <p>“ If it simply appears that both transactions took place on the same day, without anything to indicate the hour, no presumption' .arises in favour of either; they stand upon an equality in this .respect.</p> <p>“ The burden of proof is not more upon the one than upon the •other, and an investigation must take place. But if the holder of the conveyance prove the particular time at which it was delivered, I think he casts upon the holder of the judgment the burden •of proving the hour at which his lien was entered. To require more than this of the claimant under the deed would seem to be ■unreasonable. He knows the time at which the conveyance was ■made, and should show it, but in regard to the time of entering the judgment he knows nothing. The holder of the judgment does know this time, and although he possibly may not be able to prove it, he is more likely to be able to do so than the holder of the conveyance.</p> <p>“ In the ease before us it is shown, that the conveyance was •made between the hours of ten and one o’clock, in the middle of \the day. So far as appears no effort was made to show the hour at which the judgments were entered. No presumption whatever' exists in their favour, and I think what was shown by the claimants under the conveyance was sufficient to cast the burden of proof upon them. The hour at which the conveyance was made having been exhibited, it became necessary that the judgment creditors should show priority.</p> <p>“ They are endeavouring to carry out a scheme by which it was intended to give them a preference over other creditors. The assignment was in contemplation, and the conveyance prepared some days before the judgments were entered. It is not unlikely that the delivery of the conveyance and entry of the judgments took place virtually at the same time.- No such preference can be created by the deed of assignment. - The Act of Assembly forbids it. And although it is held that a judgment entered prior to the assignment, in contemplation of that act, and with a view to preferring the creditor, is good as a lien, no presumption should, I think, be made in favour of such a judgment, but the creditor setting it up should be required to show very distinctly that it was a lien upon the land at the time of the assignment.”</p> <p>The decree of the court confirming the auditor’s report was assigned for error.</p>

<p>Error to the Court of Common Pleas of Delaware county.</p> <p>This was an amicable action of debt, between the Commonwealth and Elizabeth P. Powell, executrix, &c., of Eliza L. Jordan, deceased, in which the following case was stated—</p> <p>“ Eliza L. Jordan, the testatrix, died in February 1863, having first made and published her last will and testament (see extracts below). The clear value of her estate passing to her devisee, Elizabeth P. Powell, aforesaid, was $14,133.80. The said devisee, Elizabeth P. Powell, was formej’ly the wife of decedent’s son, William Lincoln, who died some years before the death of the decedent; and the said Elizabeth P. Powell, during the lifetime of the testatrix, again intermarried with Elwood Powell, her present husband. The collateral tax on the said estate has not been paid.</p> <p>“ If the court should he of opinion that collateral tax is collectable from the said devisee Elizabeth P. Powell, then judgment shall be entered in favour of the Commonwealth and against the defendant in this suit, for the sum of $706.69 and costs ; but if the court should be of opinion that such tax is not collectable under the laws of this Commonwealth relating to collateral inheritances, then judgment shall be entered herein in favour of the defendant with costs.”</p> <p>The estate passed to Elizabeth P. Powell by these clauses in the will and codicil: viz. “ All the said residue and trust estate, excepting the five hundred dollars thereof, hereinbefore given and bequeathed to Jacob K. Simpers, and excepting the said income, rents, issues and profits, I give, devise and bequeath to my daughter-in-law Elizabeth P. Lincoln, her heirs and assigns for ever; to come into her possession’ and enjoyment immediately upon the death of my said husband.”</p> <p>Codicil. — “ My husband in said will named being now deceased, I hereby give and bequeath all the part of my estate given to him therein to my daughter-in-law therein named, now Elizabeth P. Powell, and I hereby nominate and appoint her my sole executrix.”</p> <p>“ Item. I hereby confirm the said will, except so far as the same is hereby altered; and acknowledge the same and this codicil to be my last will and testament and codicil thereto.”</p> <p>The court below (Butler, P. J.) entered judgment for the defendant, which was assigned for error.</p>

This was an action by Antonio Y. Del Yalle and Jose M. Y. Del Yalle, trading as Yznaga Del Yalle & Co., against Edmund A. Souder and Archibald Getty, trading as E. A. Souder & Co. The action was upon a charter-party made at Cardenas by E. T. Padelford, master of the brig Carolina, on behalf of her owners, the defendants, in which was the stipulation “ that Captain Padelford guarantees that the cargo shall insure at as low a rate as in an A 2 vessel, any extra premium to be…

In Equity. In the court below this was a bill of complaint by Elizabeth C. Erwin, Mary L. Erwin, Samuel Agnew and. Susan his wife (formerly Erwin), Margaret T. Erwin and Louisa Erwin, against the City of Philadelphia and William W. Smedley, chief commissioner of highways of said city, filed August lfth 1864. The city filed a disclaimer, February 2d 1865.

<p>Appeal from the Court of Common Pleas of Bucks county, by Thomas L. Woolston, in the matter of the distribution of the proceeds of sale of real estate, under levari facias, Early v. Winder.</p> <p>The premises sold under the above writ were owned in 1845 by Winder, who in that year executed a mortgage of them to Jane Hillborn to secure the sum of $2400. In April 1857 Winder conveyed the premises to John Ely, subject to the mortgage; he shortly afterwards sold them to John Longstreth, and by direction of Longstreth conveyed them, on the 19th of September 1857, to Mrs. Rebecca Plumley, subject to the mortgage, for the consideration of $3000, which was paid by the husband of Mrs. Plumley with his own funds.</p> <p>On the 17th of July 1861, Woolston recovered a judgment against Mr. Plumley for $2160, on a cause of action which accrued October 15th 1860. On this judgment the premises were sold by the sheriff to Woolston for $5. ■ He then instituted an action of ejectment against Mrs. Plumley, obtained judgment September 20th 1864, and possession under a habere facias. Subsequently Early, the assignee of the mortgage, subject 'to which the property was conveyed to Mrs. Plumley, sued it out, and the premises were sold by the sheriff to Woolston for $3000. The deed was .acknowledged September 19th 1865. Woolston had continued in possession till this sale. The contest for the balance of the funds after paying the mortgage, was between Woolston, claiming by virtue of his purchase of the premises under his execution against Mr. Plumley, and his recovery of them in ejectment against Mrs. Plumley, and Mrs. Plumley claiming by virtue of the conveyance to her by Ely in 1857.</p> <p>The matter was referred by the Court of Common Pleas to Henry P. Ross, Esq., whose report was approved both by the court below and the Supreme Court.</p> <p>After stating the introductory facts as given above, the auditor reports:—</p> <p>“ At the very outset of the hearing before the auditor the counsel for Woolston desired that he should be entered on the record as objecting to any claim made by Mrs. P. upon the fund in court, on the ground that she had no legal interest which she could here maintain. The counsel for Mrs. P. desired that the same objection on his part against the claim of Mr. W., and for the same reason, should also be entered upon the record.</p> <p>“ In support of his objection, the counsel of Mr. W. earnestly contended that Mrs. P. could not sustain her claim to this fund, even admitting that the voluntary settlement was made in good faith, and under circumstances" by which it might be sustained, because, at the last sheriff’s sale, she had instituted no second action of ejectment against W. ; and the premises being in his possession at that time by virtue of the verdict and judgment in the former suit, she was now estopped from appearing as a claimant to the fund, raised by a sale on an encumbrance upon a prior title. The argument of the counsel upon this point, though ingenious, is entirely fallacious. It will be admitted by all that the right to receive the residuary proceeds of a judicial sale of land is vested in the person in whom the complete legal' and equitable title is vested. But to complete and perfect a title possession is but one step — to it must be conjoined the “ right of possession” and the right of property ; and these latter requisites when vested in one and the same person, also vest in him the residuary proceeds of a judicial sale of land, no matter in whom the bare possession may be, no matter whether that possession b & primé facie lawful. But an action of ejectment effects, tries and determines possessory rights only; and the possession recovered by its agencies is a bare possession and nothing more, and may be, and often is, a possession in contravention of the right of property. One verdict and judgment does not even settle the bare possession, as between the litigants themselves permanently, for such possession may be successfully assailed in at least one subsequent action. But to exclude Mrs. P. from claiming this fund, because one verdict and judgment had been entered against her in ejectment, would give to such verdict and judgment the effect, so far as the fund was concerned, and here the fund is substituted for the land, of a complete bar to her right in it, while as to her rights in the land it wTould not operate as an estoppel. Surely this cannot be! Again, admitting for the moment that the right of property, and the consequent right of possession to be actually in Mrs. P., she can no longer resort to the land in the tenure of the sheriff’s vendee for the vindication of those rights, for he holds by virtue of a prior title unassailable by her ; but if the counsel for Mr. W. be correct, she is estopped from even claiming the fund; and thus, although it is one of the proudest boasts of an enlightened jurisprudence “ that there is no right without a remedy,” she would under the assumption be vested with the right of property, without power or the mode in the law by which she could enforce it; and this, too, when as between herself and Mr. W. she has been guilty of no estopping laches ; for her second act of ejectment, if the possession were still in him, might be brought tomorrow, and would be in time.</p> <p>“ But the auditor is of opinion that if Mr. W.’s possession was based upon and fortified by two verdicts and judgments in ejectment against Mrs. P., she could still claim this fund, and if she established the right of property in herself could maintain her claim. At common law, there was no limit to the number of actions of ejectment which might be brought between the same parties for the possession of the same realty. At common law, practically as well as theoretically, it was simply the bare possession that was at issue. To vest an indefeasible title in any individual a “ writ of right” was the only remedy. Our statute provides, that two verdicts and judgments therein between the same parties and their privies, shall be conclusive upon the rights of possession claimed by the other : and as ejectment is the only remedy in Pennsylvania to recover possession, two verdicts are incidentally an estoppel, not to absolute rights, but further remedies enforcing possessory rights. They vest no title in the party in whose favour they are rendered, who may in turn be dispossessed in other actions of ejectment brought by other parties. They decide nothing as to the right of property, which is the issue here — and which, if possessed and established here, by Mrs. P., would entitle her to this fund, non obstantibus veredictis.</p> <p>“ This disposition of the objections of counsel as to the legal status of the claimants, leaves pending the main question in the case, which is: was the purchase of these premises by Mr. P. for his wife, on the 19th day of September 185T, fraudulent in fact or at law ? As the auditor has already stated, he finds as a fact that these premises were purchased by Mr. P. with his own money, and that not a cent of Mrs. P.’s separate estate, if she had any, was paid on account of the purchase-money. It was a voluntary settlement.</p> <p>“ The first inquiry then is: was Benjamin Rush Plumly indebted at the time of the settlement ?</p> <p>“1. The evidence offered to establish indebtedness at the time, is very slight and unsatisfactory. It consists of the deposition of Mr. Middleton, and the letter of Mrs. A. Corlics to Harvey Shaw. The indebtedness shown by Mr. M. to exist, is one irrecoverable at law — the claim is one that has not existed since 1858, and which was surrendered by his own act, when he failed to tender the stock to Mr. P. within the time specified — for the debt, if any, arose upon Mr. P.’s agreement to take the stock off M.’s hands within a year, if the latter became dissatisfied. No tender ever was made, and the subsequent sale of the stock by M. without a tender, within the time limited, released Plumly from all liability. * * * These are the only facts establishing indebtedness on the part of Mr. P., in September 1857, or at any time previous to that date, which still remain unsatisfied. While the auditor is of opinion that this indebtedness is not sufficiently established as a legal indebtedness, which alone would be sufficient to avoid the conveyance to Mrs. P. as fraudulent — still he is inclined to give if sufficient weight to throw the burden of establishing the solvency of her husband at that time on Mrs. P. For, the auditor holds, that if an indebtedness to any amount be established at the time of a voluntary settlement, it imposes upon those claiming under it the duty of establishing solvency of a sufficiency to rebut the presumption that such voluntary settlement was covinous: 12 S. & R. 454; Black v. Nease, 1 Wright 438; Coates v. Gerlach, 8 Wright 45.</p> <p>“ 2. Was Mr. P. solvent in September 1857 ? The auditor, after a careful review of the whole testimony, is of opinion, and so finds, that at the time of the conveyance to Mrs. P., to wit: in September 1857, Mr. P. was solvent, and owned property which at the then market price, and for nearly three years thereafter, was worth at least $30,000. In finding this fact the auditor has rejected from consideration the declaration of Mr. P. in regard to his financial status.</p> <p>u The solvency appears first in the testimony of Harvey Shaw, who says, that during the years 1856, 1857, 1858 and 1859, his credit was good, and that in the judgment of the witness he was solvent. The same opinion of his resources was entertained by Mr. Lloyd. * * * So completely had this general idea of his pecuniary ability been established, that Dr. Winder, in the spring of 1857, his neighbour, unhesitatingly received his plain note for nearly $3000 in payment of the purchase-money of land, without any security, which was promptly met at maturity by Mr. P. Dr. Winder, at the time he took the note, knew of no indebtedness on the part of Plumly to any one.</p> <p>“ It appears from the testimony of General Ely that from 1856 to 1860, Mr. Plumly met his indebtedness in all cases which came to his knowledge. * * In fact, wherever any of the witnesses during that period speak of an indebtedness owed by Mr. Plumly, they also speak of the payment of that indebtedness; and there is no evidence of his failure to meet an obligation contracted during that period. This of itself establishes his solvency in September 1857. But he was much more than solvent before, at that date, and subsequently to it. General Ely testifies that he believes he was worth in 1856 from $60,000 to $75,000; and .he enters into details, stating what property he possessed. * * He was, therefore, beyond all question solvent in September 1857, when the voluntary settlement was made, and for at least two years thereafter — for Mr. Ely testifies that the first knowledge he had of his difficulties was in the latter part of 1860 or 1861; and that he met no losses within the knowledge of Ely until this last-mentioned period, about which time his financial difficulties came to the knowledge of Mr. Ely. It is therefore immaterial, for the purposes of this case, whether he was indebted to Mr. Middleton and Mrs. Corlies or not — for the whole amount of his liabilities to them was but $4800, and his assets must have at least amounted to $40,000. The indebtedness which would render a voluntary settlement fraudulent must be to such an amount as would approximate to embarrassment. Eor if any degree of indebtedness, however small, would defeat a voluntary conveyance, all would be virtually, per se, fraudulent, since no individual, perhaps, is at any time absolutely free from debt: Salmon v. Bennet, 1 Am. L. C. 31. But the liability here, as compared with the amount of Mr. P.’s resources, and the value of the voluntary settlement, which amounted in fact to hut $3000, is such that it cannot in any way render the conveyance to his wife a fraud upon existing creditors. ■</p> <p>“ Another and grave inquiry still remains, which is, was this voluntary settlement made by Plumly with a view to protect himself against future liabilities and future risks, which he then contemplated incurring ? If it were, it would be upon the same footing, governed by the same principles and affected by the same rule of law which avoids conveyances intended to delay, hinder or defeat existing creditors. It is strongly contended that this conveyance was made with this view; and it is insisted that at the time it was made Mr. P. was upon the eve of entering into extensive speculations, which increased his liability to loss, and endangered his whole fortune. If this be true, it wmuld render the settlement void; but the auditor is unable to discover any evidence of this fact.</p> <p>“In 1853 Mr. Plumly retired from mercantile business and began to speculate in coal lands. At the time of this conveyance, and by means of these speculations, he had amassed more than a competency. From 1853 to 1857 he was engaged in precisely the same pursuits which employed his capital after that date ; and there is no evidence to show that the risks subsequently taken were greater than those previously incurred. With what animus then was this conveyance made ? For there is nothing in the resources, the liabilities, the business, or the subsequent engagements of Mr. Plumly, which, per se, would render the settlement void. Yet, it is nevertheless true, that if it were made with a fraudulent intent against any creditor then existing, or who might in future exist, it would be fraudulent and void. It could have been made with no such intent as to existing creditors, for at that time no creditors with legal rights were in existence. It could have been made with no intent to defraud Mr. Woolston, for the cause of action on which his judgment is based did not accrue until October 1860 ; and the only evidence which can be tortured to establish a fraudulent intent in the conveyance, against future creditors, is that afforded by the testimony of Amos Phillips,’who says, that after a negotiation for the sale of these premises between Plumly and himself had fallen through, in the year 1862, on account of Woolston’s attempt then pending to avoid this conveyance, Plumly urged him to take the title, because, he said, ‘ thee must know that I am smart enough not to let such a scamp as Woolston get ahead of me ;’ and it is contended, that these words evince a fraudulent spirit as against all future creditors.</p> <p>“ But this declaration is peculiarly applicable by its terms to Woolston alone ; it is a triumph over him ; and yet he could not have been a party whom Mr. Plumly intended to defraud by this conveyance to his wife, because his debt was not incurred until three years after that conveyance. The declaration of Plumly is more the self-gratulation of a man rejoicing in the astuteness, which has made a provision that cannot be assailed, and an assertion of confidence in that provision, than an unblushing proclamation of his own rascality. All the circumstances rebut the idea of a fraudulent intent. The amount of the settlement at the time it was made, in comparison with the bulk of Mr. Plumly’s estate, is so wholly inadequate as a protection against future creditors, that it is impossible to conceive that it was intended to delay, hinder, defraud or defeat' them. It is really a settlement of but $3000 ; for the money paid for the property bought of Mrs. Plumly by Winder passed into her husband’s hands as appears by the testimony^ of Isaac Paxson. Mr. Plumly’s prosperity was so complete at the time it was made; all his investments were then apparently so remunerative, that a provision for insolvency was almost the last step he would have taken; and if taken, would certainly have been to an amount ample enough to maintain him in the event of its occurrence. Fraud must be proved, and cannot be presumed, and the auditor therefore finds as a fact, that this conveyance was not made with a view to future indebtedness or for the purpose of defrauding creditors, but was a gift to the wife, when the circumstances of the husband amply justified him in making it; and when the law would recognise it as a legal and bond fide transaction. The residue of the fund, therefore, after deducting costs, is distributed to Mrs. Plumley.”</p> <p>The court below (Chapman, P. J.) confirmed the report and decreed distribution in conformity with-it; this was assigned for error.</p>

This was an amicable action of covenant, in which there was a case stated, between Samuel M. Hager, to the use of Charles Schonley, plaintiff, and Tobias Fluck and Jacob Delp, administrators, &c., of Charles Z. Nace, deceased. On the 30th of December 1856, William Spink gave a mortgage to Hager, to secure a bond recited in it. On the 1st of January 1857, Hager assigned the mortgage to Nace.

This was an action of debt by the City of Philadelphia against the Second and Third Street Passenger Railway Company, to recover the amount claimed to be' due the city as tax on dividends for the years 1861 and 1862. The claim is under the third section of the company’s charter of April 10th 1858.

In Equity. This was a bill by John B. Heyl against the Philadelphia, Wilmington and Baltimore Railroad Company and the Southwark Railroad Company.- The bill set out the incorporation of both companies, that the Southwark company leased to the Philadelphia, Wilmington and Baltimore company ; that the complainant owned a lot contiguous to the Southwark road, at which he carried on, and still carries on, the business of dealing in coal; that on his application, the Southwark…

This was an action on the case by Louisa Hunt, for herself and Lydia Hunt, a minor, against The Pennsylvania Railroad Company, for negligence in causing the death of Daniel Hunt, the husband of the plaintiff. On September 24th 1864, the defendants were erecting a building on Market -street west of Fifteenth street, Philadelphia ; the building extended back to Filbert street.

<p>Appeal by Josiah Kisterboek from the Court of Common Pleas of Philadelphia, in the matter of the distribution of the estate of The Premium Loan Association assigned for the benefit of creditors, February 21st 1860. By the report of the auditor it appeared that the association was incorporated March 8th 1855. The object of the association as stated in its constitution, was the accumulation of a fund from weekly contributions and fines, premiums on loans, and interest on investments, for the benefit of its members. A person depositing a sum however small became a stockholder and could vote, but could not bid for a loan unless the full value of his stock, $200, had been paid. After the assignment, an accountant examined the books of the association, and found that a dividend declared, August 22d 1856, left the association insolvent to the amount of $2336.58. They continued declaring large dividends till August 20th 1858, when they declared a dividend of $7092.14, for which there was no surplus, but a large deficiency. If the assets had been worth what they called for, they would not have been sufficient to pay the creditors at the time of any of the dividends. The insolvency arose from fraud in the directors in paying dividends without profits, or taking losses into account. The claims presented to the auditor Were for deposits made by stockholders, except Kisterbock’s, which was for a loan made by him to the association for which he took this note:&emdash;</p> <p>“Due, Philadelphia, August 1st 1858, Josiah Kisterboek, by The Premium Loan Association, one thousand dollars, on demand.”</p> <p>“ $1000. “ John Wilson,</p> <p>J Corporate Seal.</p> <p>“ President.</p> <p>“ William A. Steelman,</p> <p>“ Secretary.”</p> <p>Kisterbock was a director at the time of the loan: he had served as director from March 1857 to March 1858, and was again elected in April 1858, and so continued until July 1859, .when he was elected treasurer; he filled that office till October 18th 1859. The condition of the association was one of fraudulent insolvency as far back as August 1858. Kisterbock was an active director, and attended in the board regularly. The loan was made by Kisterbock the day after the dividend of August 1858, and was used to pay the dividends which were declared in fraud of the rights of the stockholders. The auditor decided that:—</p> <p>“ The association being insolvent by the fraudulent actions of the directors in declaring dividends for the payment of which there were no profits, and the claimant being an active director at the time of the loan and of the insolvency, the law will presume such knowledge of the condition of the affairs of the association as to prevent, a recovery of the claim presented;” and he accordingly disallowed it.</p> <p>The court-below confirmed the report of the auditor; this was assigned for error.</p>

This was an action of debt by Osborn Conrad against John H. Allen, on the Act of April 13th 1791, § 14 (Purd. 576, pi. 27, 3 Sm. L. 32), for not entering satisfaction on a judgment.

Error, to the District Court of Philadelphia. This was an amicable action of ejectment between the City of Philadelphia and Joseph R. Flanigen, instituted under the following circumstances. The plaintiff leased to the defendant the premises in controversy (No. 136 South Third Street), for one year.

This was a proceeding in equity, in which William H. Wallace and Katharine F., his wife, in right of the said Katharine F., John R. Savage and Sallie K., his wife, in right of the said Sallie K., Henry Keyser and Benjamin W. Keyser are complainants, and George F. Keyser, Francis keyser, William H. Wallace, Maria Schively and William C. Lloyd are respondents. Elhanan. W. Keyser died intestate in February 1860, leaving real and personal estate.

<p>Certificate from Nisi Prius.</p> <p>This was an action of ejectment by Andrew M. Martin, agent, against Setb W. Holt, to recover possession of an office and cellar, part of premises at the corner of Third and Chestnut streets, Philadelphia.</p> <p>There were similar actions for parts of the same premises by the same plaintiff against Jacob E. Ridgway, A. J. Husted and J. M. Auter, which, at the suggestion of the judge at Nisi Prius (Woodward, C. J.), were all tried together; and, the same principles being involved in each of them, by agreement of counsel the decision of the Supreme Court in the first case was to be entered in all the others.</p> <p>The premises at the north-east corner of Third and Chestnut streets were owned by Robert C. Martin. He died in 1854, leaving a widow, Sarah Ann, and seven children, one of whom has since died. He devised these premises to his children equally; the widow elected to take under the intestate laws. Andrew, the plaintiff, was one of the children. On the 4th of November, “ Andrew M. Martin, Agent,” by written lease rented to Holt the office, &c., above mentioned for one month and thereafter from month to month, until one party should give a month’s notice to the other of a desire to determine the tenancy; with right of entry to distrain for the rent., if remaining unpaid. After numerous stipulations, was the following:—</p> <p>“And if the lessee shall in any particular violate any one of his said promises, or fail to comply with any of the conditions of this lease, on notice given under the terms hereof, then the lessor may cause a notice to be left on the premises of his intention to determine this lease, and at the expiration of ten days from the time of so leaving such notice, this lease shall absolutely determine; and any attorney may immediately thereafter, as attorney for the lessee, sign an agreement for entering, in any competent court, an amicable action and judgment in ejectment, (without any stay of execution) against the lessee and all persons claiming under him, for the recovery by the lessor of possession of the hereby demised premises, for which this shall be a sufficient warrant; and thereupon a writ of habere facias possessionem may issue forthwith without any prior writ or proceedings whatsoever, and the lessee hereby releases to the lessor all errors and defects whatsoever in entering such action or judgment, or causing such writ of habere facias possessionem to be issued, or in any proceeding thereon or concerning the same ; and hereby agrees that no writ of error, or objection or exception, shall be made or taken thereto.”</p> <p>On the 30th of January, Martin gave notice to Holt that he desired to determine the tenancy, and requested him to deliver the premises on the 4th March then next. Holt not having delivered the premises, Martin, March 8th, gave him this notice:—</p> <p>“ Sir : — You having failed to comply with the notice given February 2d 1865, under the term of your lease, to leave and peaceably deliver up the office and cellar No. 243 Chestnut street, part of a messuage or tenement with the appurtenances, situate at the north-east corner of Third and Chestnut streets, you are hereby notified that it is my intention to determine said lease, and that at the expiration of ten days from the date of this notice said lease will absolutely determine. “ A. M. Martin, Agent.</p> <p>“March 8th 1865.”</p> <p>On the 22d of March, under the authority in the lease, Martin procured an attorney to enter an amicable action of ejectment and confession of judgment in the Supreme Court, and issued an habere facias. Upon the application of Holt, the judgment was opened and he let into a defence.</p> <p>On the trial of the case the plaintiff gave in evidence the lease, the notices and the record of the amicable action, and closed. The defendant then offered the following evidence :—</p> <p>1. Deed from Andrew M. Martin to Edward B. Harper, dated January 23d 1865, conveying in fee his interest in the premises in question, and reciting title as derived under the will of Robert C. Martin, deceased, and also the names and interest of the other heirs and the widow.</p> <p>2. The will of Robert C. Martin referred to in the above deed, dated November 15th 1853, and proved January 16th 1854.</p> <p>3. The several accounts rendered by plaintiff to the widow and children of the said Robert C. Martin, as their agent, of the rents collected by him from the defendant down to January 31st 1865.</p> <p>4. Payment of rent by defendant to the widow and some of the heirs for time commencing prior to the commencement of these proceedings, and continuing to the (then) present time for the premises in question.</p> <p>5. Revocation of plaintiff’s agency, on or about February 2d 1865, by the widow and heirs representing eleven twenty-first parts or interests in the property in question.</p> <p>6. That the widow and heirs were opposed to the proceedings of the plaintiff, and desired the defendant to remain in possession ; for the purpose of showing that the plaintiff’s right, title and interest had ended by transfer and revocation before the commencement of this ejectment; also that plaintiff, in executing the lease in question, acted as agent of the estate of Robert O. Martin, and they, plaintiff’s principals, revoked 'his agency before these proceedings were commenced; and that defendant had received notice prior to the commencement of these proceedings in ejectment of the revocation of plaintiff’s agency and right to collect the rent, and of the appointment of another agent in plaintiff’s place.</p> <p>Which on objection by the plaintiff was rejected, and the defendant having closed his case, the court directed the jury to find for the plaintiff.</p> <p>The errors assigned were the rejection of the evidence offered, and directing a verdict for the plaintiff.</p>

This was a proceeding in equity by Henrietta W. Womrath, Andrew K. Womrath, Frederick K. Womrath, Antoine M. L. Waters and Joseph T. Ford and Henrietta his wife in her right, against John McCormick, to compel the specific performance of a, contract to purchase real estate. George F. Womrath died seised in fee of a ground-rent of $400, out of a lot in Frankford.

Gally’s estate. The following case was stated for the opinion of the court:— “ Ann Catharine Gaily, of Philadelphia, widow, deceased, by her will, dated October 5th 1858 and proved December 9th in the same year, provided, inter alia, as follows:— “ ‘ Whatever other property I may have at the time of my decease, whether real, personal or mixed, it is my will, and I do order, that the same he sold by my executrix and executor for its reasonable value, and the proceeds arising…

This was an action of assumpsit by Henry S. Henry against Samuel Stafford and Elton 'Nuttall, trading as Stafford & Nuttall, to recover a balance of $900 alleged to be due plaintiff for machinery sold.

<p>Appeal from the Orphans’ Court of Philadelphia, by Caroline N. Hollingsworth, in the estate of William W. Hollingsworth, deceased.</p> <p>Charles Wharton, by a codicil to his will, reciting that by his will he had given the income of portions of his estate for the separate use of his daughters, Sarah R. Craig and Hannah Hollingsworth, altered that provision, and directed that in the event of the death of either of his daughters, leaving her husband surviving, the trustees appointed in his will should pay to such husband one-half said income during his life, and the other half to the guardian of his daughter’s children if minors, or to themselves if of age, or when they arrived at age ; with further provision for the children on the death of the husband. William Biddle is now the trustee, in-place of those named in the will. William W. Hollingsworth was a son of Hannah Hollingsworth, who is dead, leaving her husband still surviving her.</p> <p>W. W. Hollingsworth left a will, dated June 17th 1857, and died leaving two children, the elder., born nine days after the date of the will.</p> <p>By his will he provided as follows:—</p> <p>££ Item.) — I give and bequeath all my goods and chattels, rights and credit, and personal property of. every description and wherever situated (after the payment of my debts as aforesaid), to my beloved wife, Caroline N. Hollingsworth. Item. — I give and devise all my lands, tenements and real estate of gvery description and wherever situated, to my said wife, Caroline N. Hollingsworth, her heirs and assigns, for ever in fee. Item. — In case I shall leave any child or children living at the time of my decease, I do hereby constitute 'and appoint my said wife, Caroline N. Hollingsworth, to be the guardian of such child or children during their minority, committing entirely and fully to her affection, judgment and discretion, their maintenance, educatiqn and future provision, and which guardianship I intend and consider as a suitable and proper provision for such child or children.”</p> <p>The trustee has in his hands money arising from the income aforesaid, which would be payable under Charles Wharton’s will to W. W. Hollingsworth, if he were living. Caroline N. PIollingsworth petitioned the Orphans’ Court to direct the trustee to pay to “ her the moneys now in hand as aforesaid, and such other moneys' as may hereafter accrue in like manner,” &c.</p> <p>’ The Orphans’ Court refused the petition,- “ so far as the trustee is called on to transfer to the petitioner in her own right, and Caroline N. Hollingsworth appointed guardian, ad litem; security $1000.”</p> <p>This was assigned for error.</p>